While the Chief Justice assures us that he’s very “committed” to the cause of judicial ethics that he’s blown off for years, Justice Elena Kagan has chosen to do something about it.
Former deputy solicitor general Philip Allen Lacovara flagged Kagan’s “small but real” contribution to the cause of Court legitimacy in a mostly overlooked tidbit in the Court’s May 22 orders list:
In some ways, it’s a big enough deal that a justice recused themselves at all. The justices take the position that the cited Code of Conduct only applies to lower federal courts, rendering it purely advisory for the Supreme Court. This creates some confusing marginal cases as well as very NOT marginal cases like sitting on cases where your — or your wife’s — personal benefactor has business before the Court.
But the important blow Kagan strikes for the cause of legitimacy is in the specificity she offers:
First, it appears to hint that at least one justice may be willing to resurrect the type of disclosure that was routine through the end of the nineteenth century but that the court abandoned over a century ago. Specifically, the justices used to offer at least a brief explanation why the justice did not participate in the court’s action.
Since that time, in dozens of cases per year, one or more justices stays out of a matter, but the parties and courtwatchers are left to wonder why—financial investment in one of the parties, personal friendship with the lawyers, prior involvement with the case as counsel or as a lower court judge, or any other reason.
As Lacovara notes, this matter reached the Supreme Court before and Justice Kagan recused herself without offering a reason last time, indicating that she’s adopted a new policy.
Perhaps next Tuesday, Justice Thomas will note he “took no part in the consideration of the petition (respondent bought me a Rolex).”
Kagan Takes Small But Real Step Toward High Court Transparency [Bloomberg Law News]
Earlier: John Roberts Gaslights Crowd With ‘Commitment’ To Super Secret Supreme Court Ethics Plan He Won’t Talk About
Elena Kagan Uses Footnote To Unleash Surprise Sotomayor Diss Track
Sonia Sotomayor Ruled On Copyright Cases While Disclosing Book Fees Which Is Sort Of Like Years Of Covering Up Yacht Trips And Private School Tuition
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.