The Supreme Court finally adopted a formal code of conduct in 2023, committing its members to uphold judicial integrity, avoid actual or apparent impropriety, remain impartial, disclose relevant financial interests, and refrain from political activity. What the code didn’t establish was an independent process for investigating alleged violations or determining whether a justice had failed to follow it. In practical terms, each justice remains largely responsible for evaluating his or her own conduct.

That omission became a major subject of discussion when Justices Elena Kagan and Amy Coney Barrett appeared before congressional appropriations committees yesterday. Both said the justices take the ethics code seriously. Their disagreement concerns what should happen when someone claims they haven’t.

Kagan believes the Court should continue working toward some form of independent enforcement within the judiciary. Barrett is considerably less certain that such a system could be structured without creating constitutional, procedural, and institutional problems.

Both positions deserve a fair hearing before anybody starts handing out partisan jerseys.

Kagan’s View: A Code Needs a Credible Referee

Justice Kagan’s starting point is fairly straightforward: an ethics code inspires greater confidence when someone other than the people governed by it can evaluate whether it’s been followed.

She acknowledged that the issue is unusually difficult because the Supreme Court sits at the top of the federal judiciary. Congress shouldn’t be able to use an ethics tribunal to pressure justices over unpopular rulings, and the executive branch certainly shouldn’t be placed in a position to supervise judges who may be reviewing the president’s actions. In Kagan’s view, any enforcement process would therefore have to originate within the judicial branch and preserve the Supreme Court’s constitutional independence.

Kagan has suggested that experienced lower-court, senior, or retired judges might serve on an ethics panel. Such a body could review complaints, examine the relevant facts, and determine whether the code had been violated. She doesn’t appear to be proposing that lower-court judges gain authority to overrule Supreme Court decisions or remove justices from office. The concept is instead aimed at evaluating conduct—financial disclosures, gifts, outside activities, conflicts of interest, political involvement and similar matters—rather than reconsidering judicial opinions.

The argument for public confidence

Kagan’s strongest point concerns credibility.

Even when justices behave properly, a purely self-policing system creates an obvious public-relations problem. When a justice is accused of misconduct and that same justice effectively decides whether the accusation has merit, many Americans will assume the outcome was predetermined. That suspicion may be unfair in an individual case, but the structure invites it.

Kagan also argues that an impartial review process could protect justices from false accusations. An outside panel wouldn’t merely identify legitimate violations; it could publicly conclude that particular charges were unfounded. In her words, it could demonstrate that some allegations are essentially “poppycock.”

That’s an important but frequently overlooked part of her position. Enforcement doesn’t necessarily mean hunting for villains underneath every judicial robe. A credible process could clear an accused justice just as readily as it could criticize one.

Without such a process, accusations linger indefinitely. Political activists make charges, sympathetic media outlets amplify them, the justice issues a statement, opponents reject the statement, and everyone returns to their respective corners. Nothing is conclusively resolved, but plenty of fundraising emails are sent.

The difficulty Kagan acknowledges

Kagan doesn’t pretend that her preferred solution is simple.

Having lower-court judges examine the conduct of Supreme Court justices would reverse the judiciary’s normal hierarchy. Those judges remain bound by Supreme Court precedent and could later appear professionally or institutionally affected by the justices they’re examining.

Questions would also arise about appointments, recusals, evidentiary standards and appeals. Who selects the panel? How long do its members serve? Could a justice challenge its findings? Would the full Supreme Court hear an appeal involving one of its own members? What penalties could the panel impose? What happens when an ethics complaint is really a disguised attack on a justice’s legal reasoning?

These aren’t minor details. They determine whether the process would be credible or simply create a new political battlefield with nicer carpeting.

Nevertheless, Kagan’s position is that difficulty should lead to careful design rather than abandonment. The structural obstacles are real, but she believes they can be overcome if the Court sincerely commits itself to finding a solution.

Barrett’s View: Enforcement Could Create More Problems Than It Solves

Justice Barrett agrees that the ethics code matters and says she’s fully committed to following it. Her hesitation concerns whether anyone has identified an enforcement mechanism that would actually work.

Barrett described the matter as complex and said the justices have discussed it internally without reaching a settled conclusion. She questioned who could properly police the Supreme Court, how complaints would be adjudicated and what review or appeal process would follow an adverse finding.

Her concern isn’t merely that enforcement would be inconvenient. It’s that a poorly constructed system could threaten the independence it’s supposedly intended to protect.

Who possesses legitimate authority?

The Constitution divides governmental authority among three branches. Allowing executive officials to investigate or discipline justices could give presidents leverage over the Court when major cases involving their administrations are pending. Giving Congress direct control could permit lawmakers to retaliate against justices who invalidate legislation or reach politically unpopular conclusions.

That leaves the judiciary itself. Yet the Supreme Court stands at its apex.

Barrett noted that using lower-court judges would create institutional awkwardness. Using retired or senior judges might reduce that tension, but it wouldn’t eliminate the need for an appeal process. Once an enforcement panel issues a finding against a justice, someone must determine whether that finding was legally and procedurally sound.

If the Supreme Court reviews the panel, the system eventually returns to self-policing. If another body possesses final authority, the nation has effectively created an institution capable of passing judgment on Supreme Court justices without an obvious constitutional foundation.

That’s the puzzle Barrett wants resolved before embracing the concept.

The danger of partisan weaponization

Barrett’s caution also reflects the political environment surrounding the Court.

Ethics accusations don’t arise in a vacuum. Interest groups, lawmakers, and activists frequently call something an “ethical violation” when their deeper complaint is that a justice reached the wrong constitutional conclusion. An enforcement body receiving complaints about the country’s most controversial cases could quickly be overwhelmed by politically motivated submissions.

Conservative justices would almost certainly face complaints from progressive organizations after abortion, gun-rights, religious-liberty or administrative-law decisions. Liberal justices would face similar attacks from conservative groups after rulings involving voting, presidential power, or social policy.

A process intended to improve confidence could instead encourage every disappointed litigant and political organization to convert legal disagreement into an ethics charge.

Barrett therefore appears unwilling to endorse enforcement merely because the phrase sounds reassuring. Before creating such a system, she wants to know who controls it, what authority it possesses, and how it would remain insulated from political pressure.

The limitation of Barrett’s approach

The weakness in Barrett’s position is that procedural caution can become an indefinite defense of the status quo.

There may never be a perfectly clean constitutional solution. Any accountability system involving the highest court will contain some awkwardness because there’s no higher judicial institution available to oversee it. That reality can’t automatically mean the justices must remain the final judges of every accusation against themselves.

Barrett is correct to demand a workable mechanism. But unless skepticism is eventually accompanied by an alternative, “this is complicated” risks becoming Washington’s most durable method of ensuring that nothing changes.

The federal government has successfully designed regulatory systems for nuclear material, international banking, and commercial aviation. Surely nine exceptionally accomplished lawyers can brainstorm a process for determining whether one of them should have disclosed a vacation.

Accountability Without Political Control

Kagan presents the stronger argument concerning the need for enforcement, while Barrett offers indispensable warnings about how that enforcement must be structured.

Scripture repeatedly connects public authority with impartiality, honesty and accountability. Judges were commanded, “Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift” (Deuteronomy 16:19). Proverbs declares that “a false balance is abomination to the LORD: but a just weight is his delight” (Proverbs 11:1).

Those principles don’t become less important when the judges wear black robes and work in a marble building.

A commitment to judicial independence should never become a doctrine of judicial unaccountability. The Supreme Court must remain protected from presidents, legislators and political mobs attempting to intimidate it. But independence means freedom to apply the law faithfully, not freedom from any meaningful examination of personal conduct.

Kagan is right that an ethics code without a credible review process will struggle to command public confidence. A code that nobody can independently evaluate isn’t quite a code; it’s just a strongly worded suggestion.

She’s also right that enforcement could benefit innocent justices. Conservatives should especially appreciate this point. Members of the current Court are routinely accused of corruption merely because they follow originalist or textualist reasoning. A fair panel could dismiss politically motivated complaints and provide justices with something more authoritative than their own denials.

At the same time, Barrett’s warnings shouldn’t be brushed aside as obstructionism. Congress must not be permitted to create an ethics office that functions as a disciplinary arm of whichever party controls the committee gavels. The president must not possess investigative leverage over judges deciding whether his administration acted lawfully. And no ethics panel should be allowed to punish justices for their constitutional interpretations.

The proper solution would be a narrow, judiciary-controlled enforcement process created by the Supreme Court itself.

A rotating panel of respected retired federal judges could review properly documented complaints. Complaints should be screened to eliminate those based merely on judicial rulings, ideology, or unsubstantiated accusations. The panel’s jurisdiction should be limited to identifiable ethical questions such as financial disclosure, gifts, political activity, outside income, misuse of Court resources, and genuine conflicts of interest.

Its findings should generally be public and supported by written explanations. Available remedies could include requiring corrected disclosures, recommending recusal, issuing a formal finding of noncompliance, or referring potentially serious legal misconduct to the appropriate authorities. Removal from office must remain where the Constitution places it: with impeachment by the House and conviction by the Senate.

Such a panel should have no authority to reverse decisions, rewrite opinions, or discipline a justice for interpreting the Constitution differently from the panel members. Ethical accountability and judicial review are two entirely different things, and the line between them must be bright enough to see from orbit.

This approach would incorporate the best part of Kagan’s position—independent credibility—while respecting the best part of Barrett’s—constitutional caution.

Conservatives should resist the temptation to oppose ethics enforcement simply because many of its loudest advocates currently dislike the Court’s conservative majority. Political motives don’t automatically make the underlying concern illegitimate. Likewise, progressives shouldn’t pretend that every disputed vacation, friendship, or flag constitutes proof that a justice has been purchased like a used sedan.

We should apply the same standard regardless of who’s under examination. A principle that suddenly disappears when our preferred justice is involved was never much of a principle.

The Supreme Court’s authority ultimately depends on more than marshals, marble columns, or lifetime tenure. It depends heavily upon the nation’s belief that its members are administering justice rather than protecting personal interests. That belief can’t be demanded. It must be cultivated through integrity, transparency, and a willingness to accept reasonable accountability.

Kagan is therefore correct that the Court should develop an enforcement mechanism. Barrett is correct that it must be carefully limited and constitutionally sound. The answer is neither congressional domination nor permanent self-policing. It’s a restrained, judicially administered process that protects the Court’s independence while making its ethics code something more substantial than an honor system among nine of the most powerful people in the country.