Justice Elena Kagan on Thursday said she thinks Congress has the power to “regulate” various aspects of the Supreme Court just days after Justice Samuel Alito said it couldn’t, escalating tensions as Democratic lawmakers seek to keep tabs on whether the nine justices are behaving ethically.
“Of course Congress can regulate various aspects of what the Supreme Court does,” Kagan,63, said during a judicial conference in Portland, Oregon.
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“This is not surprising. I mean, our whole system is one of checks and balances,” Kagan said. “It just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else. I mean, we’re not imperial.”
Kagan added that she hopes the Supreme Court can adopt its own code of conduct and resolve ongoing questions about the checks and balances between the legislative and the judicial branches.
“It’s not a secret for me to say we have been discussing this issue,” she said. “The nine of us have a variety of views about that.”
Kagan’s comments acknowledging the nine justices’ ongoing discussions surrounding a novel code of conduct come just days after Alito, 78, was featured in Wall Street Journal op-ed saying that Congress did not have the authority to establish ethics rules for the justices.
“Congress did not create the Supreme Court,” Alito said in the interview. “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Kagan on Thursday spoke to attorneys and court personnel from the U.S. Court of Appeals for the 9th Circuit, which covers states including California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii.
Her remarks also come as the Senate Judiciary Committee, controlled by Democrats, approved a bill sponsored by Sen. Sheldon Whitehouse (D-RI) that would implement a code of conduct for Supreme Court justices and create a process to investigate violations of the code. The push for transparency comes after reports revealed Justices Clarence Thomas and Alito accepted tens of thousands of dollars worth of luxury travel opportunities from GOP donors Harlan Crow and Paul Singer, respectively.
Alito was also in the crosshairs of Judiciary Committee Democrats on Thursday, including Chairman Dick Durbin (D-IL), who wrote a letter to Chief Justice John Roberts alleging that Alito violated the court’s Statement on Ethics Principles and Practices by speaking about the constitutionality of the legislation in his latest op-ed.
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The request from the senators is likely not going anywhere, as justices use their own discretion when making recusal decisions. And the legislation backed by Democrats on the committee is unlikely to gain success in the Republican-controlled House.
The Supreme Court will reconvene during the first week of October to begin its next term.
