Justice Elena Kagan‘s recent recusal from acting on a petition before the Supreme Court gave a subtle indication of how the justices might approach transparency amid a period of heightened ethics scrutiny and low approval ratings.
Just two days before Chief Justice John Roberts said publicly that the justices are “committed” to maintaining ethics standards amid a series of scandals plaguing the Supreme Court, Kagan took a step toward greater transparency, a move legal experts suggest might preview the changes the court could make to rebuild trust in the institution.
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The May 22 orders list from the court saw hundreds of petitions denied, but one rejection in the capital case, Holland v. Florida, came with a unique line.
“The petition for rehearing is denied. Justice Kagan took no part in the consideration or decision of this petition. See 28 U.S.C. §455(b) (3) and Code of Conduct for U.S. Judges, Canon 3C(1) (e) (prior government employment),” according to the orders list, which cited the section of U.S. code governing conflicts of interest.
Kagan’s citation indicated her rationale to recuse concerned her status as a former government employee. She was previously the U.S. solicitor general when the capital defendant came before the court several years later.
Her decision also comes as public trust in the Supreme Court has dipped to just 41%. That’s down even further from January when 47% of people approved of the court and coincides with a recent string of reports raising transparency complaints about affluent Republican donor-paid trips taken by Justice Clarence Thomas.
The Washington Examiner spoke to several legal experts who offered a range of interpretations from the brief note, some suggesting that the inclusion could signal a new pattern from the justices while others surmising that it was more detailed compared to typical recusal notices.
“It might indicate a new practice,” Case Western Reserve University law professor Jonathan Adler told the Washington Examiner. Adler mentioned if the note does amount to a new practice, it’s because the possibility of noting the basis for a recusal “was anticipated” in a statement of principles the justices signed that were attached to Roberts’s letter to the Senate Judiciary Committee last month.
“Note, however, that statement indicates disclosure of the reason for recusal is not always appropriate,” Adler said.
Philip Allen Lacovara, the former U.S. deputy solicitor general, wrote an op-ed stating that Kagan’s explanation for her recusal referenced the Code of Conduct for United States Judges, noting the “code applies by its terms only to judges below the Supreme Court.”
“While court reform groups have pressed the Supreme Court to adopt it — or something like it — for the justices themselves, they have stubbornly refused to do so. Kagan’s action suggests a crack in the obstinacy,” Lacovara said.
Brookings Institution senior fellow Russell Wheeler said the recusal note was a “helpful nod” but contended it could add confusion to the standards the justices are expected to abide by.
Wheeler said simply referencing the code of conduct could create confusion and inspire misleading notions that applying the rules for lower court judges is a “cure-all for [the] Court’s ethical challenges.”
Meanwhile, other legal experts, such as University of Richmond Law School professor Carl Tobias, said Kagan at least deserved “substantial credit and thanks” for attempting to push for more transparency.
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Another Case Western professor, Jonathan Entin, agreed Kagan’s action was a positive step but contended her decision can only go so far for the high court’s critics.
“Beyond that, though, people who are skeptical of the Court’s approach to ethics will emphasize that their principal concern is that justices are not recusing in cases where the critics think they should recuse rather than that justices are not explaining why they do recuse when they decline to participate in cases,” Entin said.
