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’ testimony was the court’s budget, which Congress appropriates, the two discussed a wide range of issues, from security and enforcement of the court’s ethics code to its emergency (Kagan’s preference) or interim docket.
After beginning her remarks by expressing condolences for the recent death of Sen. Lindsey Graham of South Carolina, Kagan explained that the “recent growth” in the Supreme Court’s budget (which will exceed $220 million in Fiscal Year 2027) was “almost entirely for security expenses.”
When she joined the court in 2010, Kagan noted, it was an “entirely different world” 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 “big ramp-up” came in 2022 with the leak of the court’s opinion in Dobbs v. Jackson Women’s Health Organization, in which the court overturned the recognition of a constitutional right to an abortion. At that point, she emphasized, the attention to security “acquired even more urgency.”
Barrett stressed that although statistics about threats to federal judges may “sound abstract,” “being on the receiving end of them is not.” Barrett recounted the story of bringing home a bulletproof vest because of the threats that she received in the wake of the Dobbs 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 “false deliveries” 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. “The threat level is really high,” Barrett concluded.
The two justices found uniform bipartisan support for the increased security for the justices. Rep. Dave Joyce, a Republican from Ohio, declared that “judges should be able to do their jobs without fearing for their safety or that of their families,” while Rep. Steny Hoyer, a Democrat from Maryland, pressed the justices about whether the court’s budget was “enough to avoid” 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.
Responding to Hoyer, Kagan told him that “you are speaking to the choir here.”
When asked about specifics of the justices’ security details, Barrett indicated that an individual justice’s security detail ranges from four to eight officers, while cabinet-level officials often have as many as 20. She said that “[w]hen officers drop me off at 11 at night and the same team comes back the next morning, it’s just a lot of hours.”
Kagan echoed this point, telling the Senate subcommittee that having a smaller detail creates “a lot of overtime” for those officers, as well as a “danger of burnout.” The optimal number, she suggested, would be “more like 12” people per justice. More broadly, Kagan said, the Supreme Court is “still looking for 100, 150 more officers. And that will take some time.”
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 “increasingly dangerous to be a Supreme Court justice these days,” she said, because of “rhetoric from public officials on both sides of the aisle” who “should know better.”
Sen. Jack Reed, a Democrat from Rhode Island, also cited public statements by President Donald Trump after the court’s decision in February striking down the president’s sweeping global tariffs as “very dangerous to our court and the whole system.”
Kagan agreed that such inflammatory rhetoric, regardless of the source, was “dangerous” and “not appropriate.” Criticism of the court’s opinions, she said, is fair game, “but intimidation is a different thing entirely.”
Discussing rhetoric in the justices’ 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 – a move that she appreciates, she said.
Sen. Bill Hagerty, a Republican from Tennessee, suggested that the leaking of information also “dramatically increases security risks.”
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’t have “honest conversations” with each other. It’s “just not the way a court should operate.”
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. “You can and do accept these gifts,” DeLauro said to the justices.
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.
Reed was critical of the lack of an enforcement mechanism in the justices’ ethics code. Without one, he said, the ethics code is “more aspirational than practical.”
Barrett resisted that characterization, insisting that the code is “more than aspirational” and calling the enforcement issue a “complex question.”
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 “very difficult question” because of “the importance of judicial independence.” In particular, she observed, there is the question of who should act as the enforcer. One suggestion has been to use “respected, retired judges,” but it remains an “open question” that “so far we have not resolved.”
Sen. Chris Van Hollen, a Democrat from Maryland, asked Kagan and Barrett whether the court would agree to a ban – for both the justices and their staff – on engaging in prediction markets.
Barrett responded that such conduct is already covered by the court’s 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 “incredibly important.” She said to Van Hollen that “if your charge to us is to go back and look for loopholes,” at which point Barrett chimed in, “we don’t want loopholes.”
The court’s 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“[w]e call it the emergency docket. Some of us call it the interim docket.” She later declined to call it the “shadow docket,” saying that the court had “done a better job in the recent past of explaining ourselves … at least to a moderate degree.”
And when Rep. Glenn Ivey, a Democrat from Maryland, appeared to use both terms, Kagan shot back “We’re not policing your vocabulary.” Barrett added, “You can call it whatever you want!”
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. “People will think of it as part of the normal process of litigating,” she said.
Rep. Steve Womack, a Republican from Arkansas, asked both justices to address the young people in the room and “give them hope that what we do in this country and what you do in the court is part of our genius as a country.”
Kagan responded that “our democracy … rests in their hands and how we function as a country going forward is in large measure up to them.” She urged young people to “take 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 … 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.”
Barrett added that she was “heartened 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’s 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’m not going to deal with people with whom I disagree is what we need to move forward.”
Kelsey Dallas also contributed reporting for this article.
