Justice Elena Kagan on Thursday jumped into the heated debate over ethics at the Supreme Court, arguing that Congress has broad powers to regulate the nation’s highest tribunal despite the recent claim from one of her conservative colleagues that such a step would violate the Constitution’s separation of powers.
Kagan’s comments, at a judicial conference in Portland, came just days after the Senate Judiciary Committee responded to recent ethics controversies around justices’ luxury travel by advancing a bill requiring the court to establish an ethics code and setting up a mechanism that would enforce it.
“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.”
Kagan insisted she was not responding directly to Justice Samuel Alito’s blunt statements in an interview last month that Congress would be violating the Constitution’s separation of powers if lawmakers sought to impose ethics and recusal policies on the high court.
“Congress did not create the Supreme Court,” Alito told The Wall Street Journal’s editorial page. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
While Alito’s statement sounded unqualified, Kagan said she was unsure precisely what question he was asked. She also suggested his remark could not have been as broad as it seemed because the Constitution specifically provides for Congress to dictate the sorts of cases the Supreme Court can and cannot hear. [Continue reading…]