Last November, the justices of the Supreme Court released an ethics code for themselves in response to widely reported ethics scandals and proposed legislation in Congress. Observers have noted that the code is weaker than the code that applies to all other federal judges and that it fails to address the core problem with ethics rules for the Supreme Court justices: each individual justice polices their own ethics issues, and the results of those decisions only rarely become public. And some justices have taken an even more extreme view: in a newspaper interview last year, Justice Samuel Alito opined that Congress has “no authority” to regulate the Supreme Court, despite the ethical regulations Congress already imposes on the justices.

Justice Elena Kagan, while not directly addressing Alito’s comments, expressed a different view in an interview at a conference held by the U.S. Ninth Circuit Court of Appeals in late July. While defending the rules in the justices’ code, Kagan acknowledged that the lack of an enforcement mechanism was a fair criticism. As a potential response to this criticism, Kagan said, “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 emphasized that this was only her view, not an indication of anything the Supreme Court itself is working on, and the ethics code enforcement was just one of a list of things that Kagan criticized about the Supreme Court. She also included a call for fewer concurrences and decreased use of the court’s emergency docket and lamented the “instability” she predicts will result from the court’s recent rulings increasing the judiciary’s intervention in the work of executive branch agencies.

In July, two reports commissioned by Rep. Norma Torres (D-CA) assessed the federal judiciary’s systems to prevent and manage workplace sexual assault, harassment, and misconduct, and they included a number of recommendations. These reports, one from the Government Accountability Office and one jointly undertaken by the National Academy of Public Administration and the Federal Judicial Center, reflect Congress’s continuing efforts to oversee and address sexual harassment and related issues in the federal judiciary.

One recent example that underscores the importance of the study is the resignation of a federal district judge in Alaska over sexual misconduct. Judge Joshua Kindred’s resignation came at the request of the Judicial Council of the Ninth Circuit Court, which investigated numerous incidents of reported misconduct since his appointment in 2020. The council’s report also notes Kindred’s lying about the misconduct during its investigation. “He undertook all these actions without any regard for the impact of and the ethical issues raised by his conduct,” the report states.

Torres has also indicated a continuing commitment to addressing these issues: “I am dedicated to taking all necessary measures to safeguard the well-being of employees of the Judiciary — including wielding Congress’s power of the purse. To those in the Judiciary who have witnessed or experienced misconduct and are looking for help, want to share their story, or others who are committed to reforms, we see you and are here to help. I recently established an official intake form for reporting workplace harassment, assault, and misconduct within the federal Judiciary on my website and I encourage employees and judges within the Judiciary to come forward and share their experiences with Congress and the public.”

On June 20, the Supreme Court of Florida ruled that judicial candidates can express their political ideology while campaigning for a judicial appointment but are not allowed to disclose their party affiliation. The ruling was in response to the state’s Judicial Qualifications Commission recommending discipline of Judge Casey Woolsey; the justices interpreted the state’s judicial code to mean that indications of political ideology are different from indicating any partisan affiliation and therefore not prohibited.

Some lawyers and legal experts in Florida stated that the ruling was “bizarre” given that it concluded that “to describe oneself as a conservative does not signal bias (pro or con) toward anyone or any issue.” The former chair of the Broward County Democratic Party, Mitch Ceasar, predicted that the court’s distinction will not work: “In these times certain descriptions clearly transfer to certain parties. It does more than imply a political affinity, and in a judge or judicial candidate, that is unacceptable.”

With regard to the impact on the public and voters, ethics expert Anthony Alfieri of University of Miami School of Law said that the decision “will not only erode public confidence in the judiciary but also open the floodgates to campaign political speech-related disqualification motions.” In addition, scholars and commentators are anticipating a major increase in ideological identification in judicial campaigns.