Justices Elena Kagan and Amy Coney Barrett made their case to a pair of panels in the House and Senate for increased security funding for the Supreme Court, but they also fielded other questions about their work during their rare jaunt to Congress.
The Supreme Court’s security, emergency docket, code of ethics, and leaks were among the topics asked about by members of both the House Appropriations Committee and the Senate Appropriations Committee in separate hearings held hours apart. Kagan and Barrett offered a rare opportunity for lawmakers to question sitting justices fresh off their recently concluded term, which included several closely watched cases, but the Supreme Court’s request for increased security funds was the main reason for their appearance.
Justices stress increased severity in security threats warrants additional funding
The Supreme Court has asked for a roughly $228 million budget for fiscal 2027, a 10% increase from the previous year’s budget, including $14.6 million to expand the justices’ personal protection by adding six more agents per justice. During both House and Senate hearings on Tuesday, Barrett discussed how after facing increased security threats following the May 2022 leak of a draft opinion of the decision in Dobbs v. Jackson Women’s Health Organization, her security detail sent her home with a bulletproof vest.
“I carried it into my house, put it into my bedroom, dropped it down on a table, turned around, and my 12-year-old son was standing in the doorway of my bedroom, and he wanted to know what it was and why I had it,” Barrett said. “I didn’t know how to respond because maybe I lack imagination, but 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.”
Barrett, who was appointed to the high court by President Donald Trump in 2020, also discussed the swatting incident at her home earlier this year, saying one of her teenage sons “opened the door to go out with friends and saw in our street it was full of police cars who had responded to a false report of gunshots and raised voices in my home.”
Kagan, who was appointed to the Supreme Court by former President Barack Obama in 2010, discussed how security needs for the justices have grown exponentially during her time on the high court, as threats have grown both in number and intensity.
“When personal threats increased following the Dobbs leak, we expanded our residential security and threat assessment activities. Similarly, as online attacks grew in number and sophistication, we requested additional cybersecurity resources. Our strategy has been consistent across security functions: expand incrementally but effectively to meet evolving security challenges,” Kagan said.
Emergency docket still a concern for members of Congress
While the use of the emergency docket has slowed in recent months compared to the first year of the Trump administration, several members of both committees still had questions over the influx in rulings with little to no explanation that the justices have issued on an emergency basis.
Rep. Steny Hoyer (D-MD) asked about the “substantial increase” in cases on the emergency docket, and whether that negatively affects transparency for the high court. Kagan acknowledged the complexity of the emergency docket, but she noted that the Supreme Court has made progress on better explaining rulings it issues on the emergency docket.
“The reason I think it’s probably not appropriate, at least not now, to call it the shadow docket is because we have done, I think, a better job in the recent past of where appropriate — and it’s not always appropriate — but where appropriate, explaining ourselves at least to a moderate degree,” Kagan said.
“I think that as we’ve gotten more experienced in these constant requests that are coming to us for emergency relief, that we better recognize that at least sometimes there is a need for additional information, and we have issued opinions and sometimes majority and dissenting opinions accordingly,” she added.
Democrats hammer justices on code of ethics
While the hearing was centered on the Supreme Court’s funding request for the next fiscal year, Democrats in both the House and Senate hearings pushed the two justices on whether they plan to enact an enforcement mechanism for the high court’s code of conduct. The lack of one has been a key talking point for Democrats against the high court for several years.
Sen. Jack Reed (D-RI) asked Kagan and Barrett about the potential of adopting a mechanism to enforce ethics standards for the justices, but Barrett pushed back by noting how complex that task would be, while also arguing that her fellow justices already follow the current code of ethics.
“It’s just tricky to figure out who would be the entity to enforce such a code,” Barrett said, explaining the concerns over separation of powers and how an appeals process would work.
“I’m not saying that it would be impossible to have an enforcement mechanism, but I think it’s been complicated to figure out exactly what that would be, given the position of the Supreme Court within our constitutional structure and within the judicial branch of government,” Barrett added. “But I do want to stress, ranking member Reed, that none of my colleagues, and certainly not I, think ourselves above the law or above ethics in any way.”
Kagan appeared more open to the creation of an enforcement mechanism, acknowledging the complexity but also the benefit to public perception that one would offer.
“I have come to rest on the need for an enforcement mechanism, if the enforcement mechanism is of the right kind. It’s not because I think that we’re ignoring the code of conduct. I do not think that at all,” Kagan said. “But it’s important for public perception of the court. I think it’s also important to give the justices a way to show that some of the charges against them are so much poppycock.”
No new information on the 2022 Dobbs draft opinion leak
Some lawmakers also pressed the justices about the 2022 Dobbs leak, which sparked some of the most well-documented threats against the Supreme Court in recent years. Sen. Bill Hagerty (R-TN) asked about the leak, and what has been done to combat future leaks.
Barrett said the high court has implemented improved protocols to better track who has access to certain documents, along with the addition of a requirement that employees of the high court sign nondisclosure agreements and protections for whistleblowers. Kagan underscored the importance of keeping the high court’s deliberations private, and she condemned the leaks.
“I think it is a problem that has frustrated every single one of the justices because of the security issues, but because it’s just not the way a court should operate and not the way a court can operate if it wants to have the kind of deliberations that are the backbone of what we do,” Kagan said.
Sen. Jon Husted (R-OH) also asked the justices if the Supreme Court is “any closer to knowing” how the Dobbs leak happened. Kagan was unable to provide any new information on the leak, other than a previously released report that did not come to a conclusion over who leaked the draft opinion. But she stressed that “it’s not that we’ve closed the books on it.”
“If we get any further information, we will pursue it till the end, and I know that the marshal of a court, who was in charge of that investigation, feels that that is her responsibility. As to whether it will happen, I don’t know,” Kagan said.
House and Senate want justices to testify about budget concerns more frequently
Another concern echoed by both congressional committees was the rarity of Supreme Court justices testifying before them to discuss their budgetary needs. Members of both the House and Senate committees urged the justices to appear more frequently at appropriations hearings. Prior to Tuesday, the last time justices had testified before a House committee was in 2019, while the last time they appeared before a Senate committee, not counting confirmation hearings, was in 2011.
During her opening remarks at the Senate hearing, Kagan said she hopes they can “do it more than once every three decades” and that it “doesn’t seem too much to ask for.”
AMY CONEY BARRETT DESCRIBES INCREASED THREATS IN PLEA FOR MORE SUPREME COURT SECURITY FUNDING
Kagan returned to testify before Congress for the first time since appearing before the same House committee in 2019, while Barrett returned to Congress for the first time since her confirmation hearing before the Senate in 2020.
The Supreme Court term ended on June 30, with final opinions being released in cases involving bans on biological males in women’s sports and Trump’s birthright citizenship order. The high court will return for its next term in October, with that term set to continue through the end of June 2027.