Last week, Samuel Alito made headlines for his interview with the Wall Street Journal where he declared the Supreme Court, was, well above the law. The money quote from the story was, “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” Which, as all actual constitutional scholars know, is wildly inaccurate.
And Elena Kagan is willing to say so. As reported by Politico, while speaking at the Ninth Circuit Judicial Conference she noted:
“It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial,” Kagan told the audience of judges and lawyers attending the Ninth Circuit Judicial Conference. “Can Congress do various things to regulate the Supreme Court? I think the answer is: yes.”
Though she was quick to distance her remarks as a direct response to Alito, trying to give him an out to back away from the comment gracefully (which, of course he won’t do). But she noted that of course the Court can be regulated:
“Of course, Congress can regulate various aspects of what the Supreme Court does,” said Kagan, who joined the court in 2010 after being nominated by President Barack Obama. “Congress funds the Supreme Court. Congress historically has made changes to the court’s structure and composition. Congress has made changes to the court’s appellate jurisdiction.”
This isn’t the first time (or even the second) Kagan responds to some of the politically motived BS her colleagues on the Court have publicly said. And it’s been true that Kagan has a very different take on ethics than the justices to her right.
But it was also fascinating that Kagan let folks know just a little about what’s been going on behind the curtain.“It’s not a secret for me to say that we have been discussing this issue, and it won’t be a surprise to know that the nine of us have a diversity about this and most things. We’re nine freethinking individuals,” she said. Not only are the “freethinking individuals” they’re individuals that reportedly don’t all get along.
She also expressed her hope for the Court to actually act on the ethics problems plaguing it:
“Regardless of what Congress does, the court can do stuff, you know?” Kagan said. “We could decide to adopt a code of conduct of our own that either follows or decides in certain instances not to follow the standard codes of conduct … that would remove this question of what Congress can do. … I hope that we will make some progress in this area.”
The Court certainly *could* do that… I’m just not holding my breath waiting.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].