The Supreme Court did something Tuesday that it has not done in seven years. It sent two of the justices to Capitol Hill to testify about the court's budget request for the coming year. The budget has grown dramatically in recent years because of the equally dramatic rise in the number and intensity of threats to the justices' safety.
Designated as the court's representatives were Justice Elena Kagan, appointed by President Obama, and Justice Amy Coney Barrett, appointed by President Trump.
As Kagan pointed out in her testimony, it was Republican Darrell Issa and Democrat Elijah Cummings who insisted that the court beef up its security ten years ago after Justice Antonin Scalia died in his sleep on a hunting trip, with no security anywhere nearby to respond quickly.
"They said, kind of like, we think you're crazy, you know, that that you have less security than director of the Office of Personnel Management does," she recounted the Congressmen as telling the Court, "and we think that you have to do better."
Before that, the justices basically had little to no security. They drove their own cars to work; went to the movies and shopped at supermarkets unaccompanied, and did their private travel on their own. And frankly, they liked it that way, because having security is personally invasive.
In recent years, however, the court has undertaken major changes, including continually expanding the court police force to protect the justices and their homes at all times, and funding additional cybersecurity measures.
And yet, as Justice Kagan pointed out, the Court's $207 million budget request is less than one tenth of one percent of the entire federal budget.
The justices spoke at length Tuesday about how rising threats impacted their lives. Justice Barrett came prepared with two harrowing stories. First was the day she brought home a bullet-proof vest.
"My 12-year-old son was standing in the doorway of my bedroom and he wanted to know what it was," she testified, "and I didn't know how to respond. I didn't expect that performing this service was going to put me in the position of explaining to my children what a bulletproof vest was and why I had to wear one."
She also described how just six weeks ago, her house was swatted, with local police responding to a fake emergency call. Local police could have stormed her home, but for the fact that her own security detail was there to prevent it.
Indeed, threats have deeply affected judges across America. After U.S. District Court Judge Esther Salas's 20-year old son was murdered by a gunman seeking to kill her, many federal judges have reported receiving packages bearing the name of her slain son. Those threats, Justice Barrett testified, "are meant to intimidate and they're meant to harass."
Sen. Jack Reed (D-R.I.), asked questions about President Trump's furious response to adverse rulings in the tariff and birthright citizenship cases, and whether Trump's heaping insults on the court could play a role in jeopardizing the safety of some justices. Kagan had a two-part reply.
"Criticism is fair game. I mean, go for it. You know, life in the big city is that you're subject to all kinds of criticism. But intimidation is a different thing entirely. And when political figures of any stripe are trying to intimidate judges," she said, "that's where we really have crossed the line."
The hearings were not confined to issues of safety. Congresswoman Rosa De Lauro (D-Conn.) asked about the Supreme Court's ethics requirements, noting that members of Congress and the executive branch are limited to gifts under $50, while the Supreme Court has no such limit.
She is supporting a bill that would impose upon the Supreme Court the same restrictions on receiving gifts that apply to Congress. And she called for an enforcement mechanism for the ethics rules adopted by the Supreme Court itself.
But Justice Kagan, who said she favors an enforcement mechanism, added that creating such a system is "hard." After all, as she noted, "you wouldn't want either the President or Congress" imposing a system on the court because that could well lead to compromising the independence of the judiciary.
One idea that Kagan seemed to like would be to create a panel of distinguished retired judges to enforce the court's ethics code. But Justice Barrett seemed unpersuaded.
"Who selects the judges? How is the panel composed? There's just a lot of complexity," that hasn't been worked out, she said. The disagreement between the two was, if anything, illustrative of just how hard it was to get the court to finally agree on even the relatively porous ethics code it voluntarily adopted in 2023.
The Justices were also questioned about the court's emergency docket, dubbed by critics "the shadow docket." These cases were extremely rare until the Trump administrations.
The critical difference between the emergency docket and the so-called merits docket is that emergency docket appeals often leapfrog over the lower courts, allowing the high court to decide cases without full briefing and argument, and inevitably without much, if any, explanation.
Critics, including Justice Kagan, have often criticized these unsigned and unexplained emergency docket orders for making it difficult for lower courts to know what the law is. Some have in fact accused the court of inviting the Trump administration to treat the docket like a fast-pass to getting policy rubber-stamped.
Questioned by Senator Chris Van Hollen (D-Md.), Kagan observed that part of the reason for the Court's increasing use of the emergency docket comes from the fact that "we've granted a number of these…And when people know that relief is available, there are a lot of smart lawyers out there in the world who are going to say, 'Why don't we take our shot at that?'" In other words, the court's own behavior may have invited the existing problem to metastasize.
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