{"id":383,"date":"2026-07-14T22:12:26","date_gmt":"2026-07-14T22:12:26","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=383"},"modified":"2026-07-14T22:12:26","modified_gmt":"2026-07-14T22:12:26","slug":"justices-kagan-and-barrett-testify-before-congress","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=383","title":{"rendered":"Justices Kagan and Barrett testify before Congress"},"content":{"rendered":"
\n

In the first appearances by members of the Supreme Court before Congress in seven years, Justices Elena Kagan and Amy Coney Barrett testified on Tuesday in both the House of Representatives and the Senate. Although the focus of the justices\u2019 testimony was the court\u2019s budget, which Congress appropriates, the two discussed a wide range of issues, from security and enforcement of the court\u2019s ethics code to its emergency (Kagan\u2019s preference) or interim docket.<\/p>\n

Read more Executive power and its limits<\/a><\/p>\n

After beginning her remarks by expressing condolences for the recent death of Sen. Lindsey Graham of South Carolina, Kagan explained that the \u201crecent growth\u201d in the Supreme Court\u2019s budget (which will exceed $220 million in Fiscal Year 2027) was \u201calmost entirely for security expenses.\u201d<\/p>\n

When she joined the court in 2010, Kagan noted, it was an \u201centirely different world\u201d in which she had security only for public events. The court started to focus more on security in 2016, she remarked, when Justice Antonin Scalia died in Texas, and the closest U.S. marshals were two hours away. But the \u201cbig ramp-up\u201d came in 2022 with the leak of the court\u2019s opinion in Dobbs v. Jackson Women\u2019s Health Organization<\/em>, in which the court overturned the recognition of a constitutional right to an abortion. At that point, she emphasized, the attention to security \u201cacquired even more urgency.\u201d<\/p>\n

Barrett stressed that although statistics about threats to federal judges may \u201csound abstract,\u201d \u201cbeing on the receiving end of them is not.\u201d Barrett recounted the story of bringing home a bulletproof vest because of the threats that she received in the wake of the Dobbs<\/em> leak and having to explain the vest to her son. Six weeks ago, she continued, she was the victim of a swatting incident; because her Supreme Court police detail was already at her house, they were able to intercept the police and tell them it was a false alarm. And like other judges, she noted, she has received \u201cfalse deliveries\u201d sent in the name of Daniel Anderl, the son of Judge Esther Salas, a federal judge in New Jersey; Anderl was killed in 2020 by a lawyer who had litigated a case before Salas, and the deliveries were intended to intimidate the recipients. \u201cThe threat level is really high,\u201d Barrett concluded.<\/p>\n

The two justices found uniform bipartisan support for the increased security for the justices. Rep. Dave Joyce, a Republican from Ohio, declared that \u201cjudges should be able to do their jobs without fearing for their safety or that of their families,\u201d while Rep. Steny Hoyer, a Democrat from Maryland, pressed the justices about whether the court\u2019s budget was \u201cenough to avoid\u201d having to use contract employees. It seems, Hoyer posited, like it would be important to have security details who know the justices and their routines.<\/p>\n

Responding to Hoyer, Kagan told him that \u201cyou are speaking to the choir here.\u201d<\/p>\n

When asked about specifics of the justices\u2019 security details, Barrett indicated that an individual justice\u2019s security detail ranges from four to eight officers, while cabinet-level officials often have as many as 20. She said that \u201c[w]hen officers drop me off at 11 at night and the same team comes back the next morning, it\u2019s just a lot of hours.\u201d<\/p>\n

Kagan echoed this point, telling the Senate subcommittee that having a smaller detail creates \u201ca lot of overtime\u201d for those officers, as well as a \u201cdanger of burnout.\u201d The optimal number, she suggested, would be \u201cmore like 12\u201d people per justice. More broadly, Kagan said, the Supreme Court is \u201cstill looking for 100, 150 more officers. And that will take some time.\u201d<\/p>\n

Sen. Susan Collins, a Republican from Maine, decried the role of inflammatory comments about the court by members of Congress as creating security risks. It is \u201cincreasingly dangerous to be a Supreme Court justice these days,\u201d she said, because of \u201crhetoric from public officials on both sides of the aisle\u201d who \u201cshould know better.\u201d<\/p>\n

Sen. Jack Reed, a Democrat from Rhode Island, also cited public statements by President Donald Trump after the court\u2019s decision in February striking down the president\u2019s sweeping global tariffs as \u201cvery dangerous to our court and the whole system.\u201d<\/p>\n

Kagan agreed that such inflammatory rhetoric, regardless of the source, was \u201cdangerous\u201d and \u201cnot appropriate.\u201d Criticism of the court\u2019s opinions, she said, is fair game, \u201cbut intimidation is a different thing entirely.\u201d<\/p>\n

Discussing rhetoric in the justices\u2019 opinions, Kagan emphasized that she tries not to let her writing drift into personal attacks. She recounted how, after circulating a draft opinion, one of her colleagues will occasionally call and suggest that she delete a line from the draft \u2013 a move that she appreciates, she said.<\/p>\n

Sen. Bill Hagerty, a Republican from Tennessee, suggested that the leaking of information also \u201cdramatically increases security risks.\u201d<\/p>\n

Kagan acknowledged that leaks from the court pose a security risk, but she saw a bigger problem: their effect on the dynamic at the court. If the justices cannot trust each other, she said, they can\u2019t have \u201chonest conversations\u201d with each other. It\u2019s \u201cjust not the way a court should operate.\u201d<\/p>\n

Several members of Congress pressed Kagan and Barrett about the ethics code that the justices adopted in 2023. Rep. Rosa DeLauro, a Democrat from Connecticut, asked the pair about gifts, noting that members of Congress cannot accept gifts worth more than $50 each, or more than $100 worth of gifts from any one individual per year. \u201cYou can and do accept these gifts,\u201d DeLauro said to the justices.<\/p>\n

Read more Two cheers \u2013 but not three \u2013 for Roberts and Barrett<\/a><\/p>\n

Barrett countered that the justices follow the rules that apply to all federal judges: they cannot accept gifts from litigants and have to report any gift valued at more than $500.<\/p>\n

Reed was critical of the lack of an enforcement mechanism in the justices\u2019 ethics code. Without one, he said, the ethics code is \u201cmore aspirational than practical.\u201d<\/p>\n

Barrett resisted that characterization, insisting that the code is \u201cmore than aspirational\u201d and calling the enforcement issue a \u201ccomplex question.\u201d<\/p>\n

As she has been in the past, Kagan was supportive of the idea of an enforcement mechanism, but she too conceded that it is a \u201cvery difficult question\u201d because of \u201cthe importance of judicial independence.\u201d In particular, she observed, there is the question of who should act as the enforcer. One suggestion has been to use \u201crespected, retired judges,\u201d but it remains an \u201copen question\u201d that \u201cso far we have not resolved.\u201d<\/p>\n

Sen. Chris Van Hollen, a Democrat from Maryland, asked Kagan and Barrett whether the court would agree to a ban \u2013 for both the justices and their staff \u2013 on engaging in prediction markets.<\/p>\n

Barrett responded that such conduct is already covered by the court\u2019s ban on using information from the court for financial gain. But both justices seemed willing to take another look to confirm that such a ban would include prediction markets. Kagan agreed that the question is \u201cincredibly important.\u201d She said to Van Hollen that \u201cif your charge to us is to go back and look for loopholes,\u201d at which point Barrett chimed in, \u201cwe don\u2019t want loopholes.\u201d<\/p>\n

The court\u2019s emergency or interim docket also garnered questions and comments, including on the name itself. During her testimony in the House, Kagan began her discussion of the question by saying that\u201c[w]e call it the emergency docket. Some of us call it the interim docket.\u201d She later declined to call it the \u201cshadow docket,\u201d saying that the court had \u201cdone a better job in the recent past of explaining ourselves \u2026 at least to a moderate degree.\u201d<\/p>\n

And when Rep. Glenn Ivey, a Democrat from Maryland, appeared to use both terms, Kagan shot back \u201cWe\u2019re not policing your vocabulary.\u201d Barrett added, \u201cYou can call it whatever you want!\u201d<\/p>\n

Kagan observed that the emergency docket is much busier than when she started on the court in 2010. She posited that, by granting more emergency appeals, the court encourages others to seek emergency relief in the future. \u201cPeople will think of it as part of the normal process of litigating,\u201d she said.<\/p>\n

Rep. Steve Womack, a Republican from Arkansas, asked both justices to address the young people in the room and \u201cgive them hope that what we do in this country and what you do in the court is part of our genius as a country.\u201d<\/p>\n

Kagan responded that \u201cour democracy \u2026 rests in their hands and how we function as a country going forward is in large measure up to them.\u201d She urged young people to \u201ctake all of the opportunities that they can to learn about our country and learn about its history and learn about our government institutions and then \u2026 figure out how they can do better and leave the world a better place than they found it. I think I am optimistic that this generation of people will do just that.\u201d<\/p>\n

Barrett added that she was \u201cheartened that so many people are here and waiting in line to want to see this hearing. I think it shows engagement with our democratic process. I think what they have seen is a really constructive bipartisan effort in this hearing to address these issues and I hope they see that in the court\u2019s work. We work hard to disagree well when we disagree, and we agree a lot of the time, and I think that kind of constructive engagement and not just throwing your hands up and saying I\u2019m not going to deal with people with whom I disagree is what we need to move forward.\u201d<\/p>\n

Read more The biggest Supreme Court surprises this term<\/a><\/p>\n

Kelsey Dallas also contributed reporting for this article. <\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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