CLEVELAND — Justice Brett M. Kavanaugh said Thursday that he is “hopeful” the Supreme Court soon will take specific steps to deal with ethics issues at the court and boost public confidence in the institution.
Kavanaugh made the comments while speaking at a conference of judges and lawyers, after he was asked by Judge Stephanie Dawkins Davis of the U.S. Court of Appeals for the 6th Circuit about “perceived ethics issues” at the high court.
“The chief justice spoke about that in May and said that we’re continuing to work on those issues and that is accurate, we are continuing to work on those issues,” Kavanaugh said, referring to a speech by Chief Justice John G. Roberts Jr. “And I’m hopeful that there will be some concrete steps taken soon on that.”
Kavanaugh said of his colleagues, “We’re nine public servants that are hard-working and care a lot about the court and care a lot about the judiciary as a whole.” The justices “want that respect for the institution to be shared by the American people,” he added. “To the extent that we can increase confidence, we’re working on that.”
The high court has come under increasing pressure on ethics in recent years after a cascade of revelations about political activity by Virginia “Ginni” Thomas, the wife of Justice Clarence Thomas; lavish vacation travel by Justices Thomas and Samuel A. Alito Jr. that was paid for by Republican benefactors and not reported on annual disclosure forms; and property sales by Justice Thomas that also were not disclosed.
Both Thomas and Alito maintain that the ethics rules do not require disclosure of trips paid for by friends — and did not require reporting of private jet travel until a rules change earlier this year. Experts are divided on that question, but generally agree that Thomas should have reported his property sale to Harlow Crow, a billionaire businessman who is the justice’s benefactor.
The Senate Judiciary Committee advanced legislation in July that would require the justices to follow disclosure rules as strict as those that apply to members of Congress — including more detailed and timely information about privately sponsored travel, for example. The bill, which is opposed by Republicans and unlikely to succeed, would also tighten recusal requirements for the justices and create an ethics code for the high court.
Roberts has said the court’s unique role as court of last resort make it impossible for justices to follow the same ethical guidelines that govern other federal judges. And he has resisted congressional efforts to impose a specific ethics code on the high court, saying it would raise serious separation of powers questions.
“I want to assure people that I’m committed to making certain that we as a court adhere to the highest standards of conduct. We are continuing to look at things we can do to give practical effect to that commitment,” Roberts said at the speech in May. “And I am confident that there are ways to do that consistent with our status as an independent branch of government and the Constitution’s separation of powers.”
The chief justice has not spoken on the topic since. In the closed environment that is the Supreme Court, Kavanaugh’s remarks Thursday could be seen as a signal that the justices have made progress, even though it has been more than four years since Justice Elena Kagan made similar comments in congressional testimony about the court working on an ethics code.
When Kavanaugh was asked a similar ethics question at an event earlier this summer, he demurred, saying he was not going to get ahead of Roberts.
Under guidelines issued by the judiciary’s governing body earlier this year, Thomas recently disclosed three 2022 trips on Crow’s private jet and amended an earlier report to detail for the first time Crow’s purchase of three properties from the justice’s family.
The criticism of the court has fallen along partisan lines, with influential Republicans leaders saying it is part of an effort to raise legitimacy questions about a court that has used its 6 to 3 conservative majority to change the jurisprudence on issues such as gun control, affirmative action and most importantly, abortion. Five of the six conservative justices voted last year to overturn Roe v. Wade’s guarantee of abortion rights, returning the issue to the states and Congress.
Kavanaugh seemed to acknowledge on Thursday that the changes have raised questions.
One the themes he has tried to press in his five years since being nominated by President Donald Trump, he said, is that the court is “an institution of law, not of politics, not of partisanship.” He talked about working years ago as a close aide to President George W. Bush and said justices have to show that they have made the transition from political partisans to “independent judicial thinkers.”
“We each have our set of principles, constitutional principles, and we have to call it the same way when it hurts the Democratic Party, when it hurts the Republican Party, whether it hurt business, whether it hurts the environmentalist group – management, labor, you’ve got to be applying the same principle,” he said.
During the interview, conducted by Davis and 6th Circuit Chief Judge Jeffrey S. Sutton, Kavanaugh said that if he had not become a lawyer he might have been a high school history teacher who also coached the basketball team. And his remarks were full of sports references. He said he “totally” agrees with a now-criticized analogy Roberts made years ago during his own confirmation about a judge being like an umpire.
Kavanaugh also repeated an often-used description of himself as an optimist who lives “on the sunrise side of the mountain.” He said that means resisting criticism of his colleagues — “You’re always going to need that fifth vote” — and toning down the rhetoric in opinions.
There is a “storm around us in the political world and the world at large,” said Kavanaugh, whose confirmation hearings — amidst allegations of long-ago sexual assault that the justice vehemently denied — deeply divided the nation. “We need as judges in the legal system to be a little more, I think, the calm in the storm if we can.”