Justice Elena Kagan outlined Monday how the Supreme Court's new ethics code could be improved if it had an enforcement mechanism, rejecting claims that the idea she has proposed would be ineffective.
The court, under pressure over claims of ethics violations aimed mostly at conservative justices Clarence Thomas and Samuel Alito, issued a new code last year, but it was immediately criticized for lacking any way of enforcing it.
Kagan, a member of the court's liberal minority, has called for creating a panel of lower court judges appointed by Chief Justice John Roberts to handle allegations against the justices.
The panel could weed out baseless claims while giving tough scrutiny to those with merit, she said in an appearance at New York University School of Law.
"It seems like a good idea in terms of ensuring that we comply with our own code of conduct going forward in the future. It seems like a good idea in terms of ensuring that people have confidence that we're doing exactly that," she said.
But Kagan's recommendation to create a panel has also faced criticism. Some critics have said her proposed enforcement mechanism could lead to a flurry of baseless claims, while others have suggested the panel of judges would be too deferential to the justices.
On the first point, Kagan noted in her remarks Monday that many accusations already made against the justices are often left unresolved. The panel of judges could "sort the wheat from the chaff" by quickly dismissing frivolous allegations, she said.
"I mean, there's, like, lots of ability now to make unfounded charges about what justices do and don't do. So I don't really see how it would increase that," she said.
Kagan appeared unconcerned that the lower court judges would pull their punches, saying the judges "are not so afraid of us" as people might think.
"And I think that there are plenty of judges around this country who could do a task like that in a very fair-minded and serious way," she added.
Kagan was speaking for herself only, and it remains to be seen whether any of her colleagues back the idea. She made it clear that she was not referring to anything Congress could do on the issue, which could raise legal questions that the court might be asked to weigh in on.
One of her liberal colleagues, Justice Ketanji Brown Jackson, said this month that she would be open to the idea of an enforceable ethics code, although she stopped short of endorsing a specific plan.
