Courts

Alito, Kagan Say No To Cameras, Maybe To Ethics, In Congressional Testimony

A public hearing on the Supreme Court's budget revealed some interesting nuggets about things that will not happen.

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(Photo by Chip Somodevilla/Getty Images)

Yesterday, Justices Samuel Alito and Elena Kagan gave testimony in front of the House Committee on Appropriations. They weren’t talking about what the Court could do to stop the international criminal conspiracy being run out of the White House, or how they were going to boot an alleged attempted rapist off their bench, so nothing they were talking about was that important.

Still, the long shadow of Brett Kavanaugh’s sneer was present at the hearing. Elena Kagan revealed an important bit of information that, if true, would mark one of the biggest changes in Supreme Court conduct in the history of the institution. From SCOTUSblog:

Perhaps most notably, Kagan disclosed that Chief Justice John Roberts is studying a code of conduct that would apply only to the justices, who are not bound by the code of conduct that applies to other federal judges…

Kagan indicated that Roberts is studying a code of conduct that would apply to the Supreme Court, and she noted that Roberts has been “very proactive” in getting a working group together to deal with issues relating to sexual misconduct in the judiciary. In particular, she explained, the final recommendations will make clear that the confidentiality of a judge’s chambers will give way when someone reports sexual misconduct.

Ethics reform simply must come to the Supreme Court. I’ve argued that Congress should impose it, even though that presents tricky questions with regard to the separation of powers. Roberts doing something on his own authority would be a little bit like a teenager constructing his own punishment, but at least it’s a start.

Courts threw out 83 ethics complaints against Brett Kavanaugh, on the theory that there was no real authority to discipline a sitting Supreme Court justice. That can’t happen. Clarence Thomas, cannot, continue, to happen. In the #MeToo era, we can’t continue to treat federal judges as liege lords over young, generally powerless, clerks.

I don’t know what Roberts is cooking up, and I suspect it will ultimately be weak, ineffectual, and focused primarily on addressing the future Court and not his current colleagues, but something needs to happen on this front.

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In the meantime, Alito and Kagan assured us that everything is basically fine. Do we need more diversity among law clerks? “Kagan noted that the current crop of law clerks is significantly more diverse, at least by race and gender, than when she clerked on the court in the 1980s, but she acknowledged that there is still more work to be done.”

Is Donald Trump a clear and present danger to the very institution of federal courts? “Alito answered only indirectly, telling Bishop that it is ‘extremely important for all of the members of all three branches of our government to be accurate and respectful’ when talking about other branches.”

The current Supreme Court has one illegitimate member who sits in a seat stolen for him by Mitch McConnell. It has another who was credibly accused of sexual harassment, and yet another who was credibly accused of attempted rape. The President of the United States thinks that he can perform illegal actions because the judges he appointed will not dare go against him, and this court has already upheld a Muslim ban based on the same legal theory we thought was made infamous by the Korematsu decision.

But Alito and Kagan don’t think should I worry too much. And they certainly don’t think I should even get to see how the Court does its work on my television:

Alito acknowledged that “most people think arguments should be televised, including most of the members of my family.” Indeed, he continued, he voted to televise arguments when he was a judge on the court of appeals. But once he joined the Supreme Court, his views shifted, and he fears, for example, that lawyers would try to work soundbites into their arguments in the hope of getting on the evening news.

Kagan called the question of cameras in the courtroom a “very difficult” one. On one hand, she observed, having cameras in the courtroom would allow more members of the public to see the justices at work, and she believes that the court as an institution functions very well. But she agreed “wholeheartedly” with Alito that the top priority is that the court must continue to function as an institution, and she worries that cameras might interfere with the court’s ability to function well.

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Sure. Whatever. CAMERAS are the threat to the Court functioning “well.” Right. That’s like a restaurant owner worrying about bad Yelp reviews, instead of the mice in the kitchen.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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