Justice Kagan’s Folly

Not since March 9, 1789, when the Confederation Congress set the Constitution into use has there been a proposal for reform so cockeyed, topsy-turvy, ill-considered, self-defeating, nickel-plated, inapt, self-aggrandizing, inside out, logically crosswise, aimed at one’s own foot, and swell-headed as Justice Elena Kagan’s scheme to allow lower court judges to enforce an ethics code against the Supreme Court.Justice Kagan unveiled her doomed démarche at a conference of the United States Court of Appeals for the Ninth Circuit. The riders were gathered at Sacramento. The justice, who acceded to our highest court from her deanship at Harvard Law, stunned even the most lackadaisical of jurists when she ventured that they — who tremble every time she sharpens her pencil — are best suited to adjudicate the behavior of their juridical superiors.The justice mused, according to CNN, in respect of enforcement of an ethics code that “if the Chief Justice appointed some sort of committee of, you know, highly respected judges with a great deal of experience, with a reputation for fairness, you know, that seems like a good solution to me.” She couldn’t “think of other people who should enforce a code of conduct … against judges. And I think it would be quite bad … for us to do it to each other.”“I’m doing no intimating here,” Justice Kagan minced. She qualified her notion by calling it “one person’s view and that’s all it is.” Yet a justice’s pronouncements, even outside of court, are never just wind. Especially when Democrats — all the way up to President Biden in the Oval Office — are braying to clip the court’s wings via, per AOC, impeachment or, per Senators Durbin and Whitehouse, breaching the separation of powers. One scholar, Joshua Blackman, tells our A.R. Hoffman that “There is a reason the Supreme Court justices sit at the top of the pyramid. This proposal would invert that pyramid.” It is as if Justice Kagan, having ascended to one of Giza’s summits, desired herself to be governed from the sandy base. When it comes to, say, recusal, the Chief Justice has already said that he cannot police another justice. It beggars belief that a mere circuit rider could do so. Never mind that the Constitution declares that the “judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” That suggests that of all federal courts, the one on which Justice Kagan sits is the only one that is required to convene. All other tribunals are charted not by parchment but by the whim of Congress. The Ninth Circuit dates from only 1891. Justice Kagan, we’ve noted, has signaled a desire to be bound before. She broke last year with high court precedent in citing a statute — one that does not bind justices — alongside a notice of recusal. That can be read as a mild rebuke of the duty of Supreme Court justices to hear cases. We called it “a form of appeasement in the fight for the independence of the court.” At least, though, it was authored in her chambers, not by a circuit rider at random.Justice Kagan is one of the court’s leading lights. We have wondered on occasion if she is not chief justice material herself. Her curiosity, though, seems to double as a concession to those looking to cut the court down to size. Vice President Harris could take over not only President Biden’s candidacy, but also his threats to subdue the court. Running against the court is a shortcut to liberal acclaim. Justice Kagan hardly needs to concur.

Justice Kagan’s Folly

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