On Wednesday, August 21, 2024, Russell Wheeler, a nonresident senior fellow in the Brookings Institution’s Governance Studies program, published a commentary exploring Justice Elena Kagan’s proposal for a new system to review possible ethics complaints against Supreme Court justices.
In his analysis, Wheeler breaks down Kagan’s suggestion that Chief Justice John Roberts establish an independent review panel made up of lower court judges to evaluate any misconduct claims against high court justices. The idea was raised by Kagan earlier in August during a judicial conference question and answer session.
Kagan acknowledged the Supreme Court’s code of conduct, updated last year, lacks an enforcement mechanism to handle situations where justices may run afoul of established ethics rules. She floated the idea of Roberts appointing a “committee of highly respected judges with a great deal of experience and a reputation for fairness” to serve in an oversight role.
Wheeler examines both the potential pros and cons of such an arrangement. He notes that while it would not operate like established judicial conduct commissions at the state level, a review panel could serve as a neutral body for issuing findings on complaints similar to a public reprimand. However, Wheeler also points out major unresolved issues around how it would function in practice.
Some of the open questions Wheeler explores include the committee’s composition, authority, funding needs, reporting requirements, potential workload, and standards for determining what constitutes misconduct. He dismisses the idea it would intervene in recusal decisions but says it may issue rebukes for ethics violations.
Wheeler also questions whether the other eight justices would back such a proposal and if qualified lower court judges would be willing to potentially rule against a Supreme Court colleague. Support from both groups would likely be needed for any review panel to have legitimacy.
In overall assessing Kagan’s idea, Wheeler writes that it responds to a real deficiency around Supreme Court accountability but accepts there are challenging practical details to be resolved. He says it could push forward debate around increased policing of the high court. But Wheeler acknowledges the suggestion may make some justices uneasy and it remains uncertain if such a review panel could realistically function as envisioned.
Source: Brookings
