▶ 0:22:06Chair Hagerty: Before we begin, I'd like to tie a moment to remember our colleague, lindsey graham. He was a statesman and a friend to everybody here. Etched the unique ability to bring levity. Westerly his engagement with you when you came to the confirmation hearing, that we're still laughing about today, and I think it allowed you to show a very human side of yourself.
▶ 0:22:33Chair Hagerty: Lindsey had that ability to do just that, and I think of it at appropriate times. We're going to miss him very dearly, and I want everybody to know that and he his family and his staff are in our prayersment turning to the matter at hand, this is the third and final hearing of this 2027 cycle for the financial services and general government committee. First I'd like to welcome our distinguished witnesses, justice kagan and justice barrett of the united states supreme court.
▶ 0:23:00Chair Hagerty: It's been a number of years since supreme court justices testified before the senate, so I wanted to thank you both for being here today. The work of the supreme court is of paramount importance, and I look forward to hearing from you about the resources that the court needs to do that work. Before I turn to the supreme court's budget request, I want to direct a few words to my colleagues and to those of you that are here in attendance today about the actual purpose of this hearing. Unlike federal departments, the supreme court is not a creature of congress.
▶ 0:23:29Chair Hagerty: But it's a creature of the constitution itself. It's equal indignity to the congress and to the president. And unlike the gentlemen of the jury active and executive powers, the founders crafted the judicial power to be independent from the political branches. That independent judicial authority characterized now in alexander hamilton's words by neither force nor will, but merely judgment. It is best to secure a steady, upright, and an impartial administration of laws.
▶ 0:24:01Chair Hagerty: It's crucial that we respect that independence, which is embedded in the separation of powers that forms the backbone of american government. The judicial branch is not wholly insulated from congress, however. Congress' power of the purse imparts not only the authority, but the responsibility to fund every part of the government, including the supreme court. It's therefore important for our branches to work together to ensure that the court has the resources necessary to perform its constitutional duties.
▶ 0:24:31Chair Hagerty: With these facts in mind, I want to be clear that this hearing is about the supreme court's physical, operational, and security needs and will be conducted in light of the court's unique relationship to congress. This hearing is not a forum for discussion about the merits of specific cases, past, present or future. It's not about when the justices should recuse themselves from cases or anything along those lines.
▶ 0:24:58Chair Hagerty: Ien courage my colleagues to focus their questions accordingly, and as a reminder, each senator will have one round of eight minutes to ask their questions. I also expect that our guests today will maintain order in hearing rooms so we can conclude our business with efficiency and civility. We'll have no tolerance for interruptions today in any demonstration or disorderly conduct will result in prompt removal.
▶ 0:25:23Chair Hagerty: The supreme court's budget request for fiscal year 2027 seeks $207 million in discretionary funding much this amount is $13.9 million, or 7.2% increase over the total amount of discretionary funding provided for the supreme court for fiscal year 2026. The requested increase is driven by an increasingly dangerous threat environment and the recognition that more resources are needed to counteract this concerning reality.
▶ 0:25:52Chair Hagerty: There's no denying that we're experiencing a disturbing level of violence against those who serve in the highest levels of government. President trump has survived three assassination attempts in the past three years. Yesterday was the second anniversary of the attempted assassination in butler, pennsylvania, where the assassin's bullet actually drew blood. But for a millimeter, president trump would have been killed, tragically, one person was killed, and two more were critically injured. That's hardly the only incident.
▶ 0:26:22Chair Hagerty: Our colleague, rand paul, suffered assault. Someone firebombed governor josh shapiro's home. House majority leader steve scalise survived an assassination attempt. The political violence is not directed to officials officials, as we recently saw with the assassination of charlie considering. And particularly, relevant for today's hearing, the supreme court has not escaped this dark trend of politically motivated violence.
▶ 0:26:48Chair Hagerty: Following the 2022 leak of the cost draft opinion, a man who was intent, I presume, on preserve the roe decision tried to kill justice cavanaugh at his home, bringing with him a gun, knife, pepper spray, zip ties, lock equipment, and duct tape. Separately, justice alito's staff opened an envelope to find a white powdery substance inside. Ultimately 9 substance was harm -8s, but it was intended to terrorize the court and intimidate and obstruct operations.
▶ 0:27:20Chair Hagerty: We also observed hundreds of demonstrators gathering outside the justices' homes, attempting to intimidate and influence them. An apparent violation of a statute, yet without a single arrest by the department of justice. Justice barrett was the target of a swatting attack, intending to create an environment that could have created potential injury for her or her family.
▶ 0:27:42Chair Hagerty: These disturbs instances force us to confront the reality that the physical security of each member of the supreme court is a matter of constitutional consequence. Though maintaining operational security might require obscuring some details, I am hopeful that the justices today will be able to testify in a manner that helps us understand these threats. Accompanying the rise of physical threats is also a rise in cyberthreats.
▶ 0:28:08Chair Hagerty: In january, a man pleaded guilty to hacking the supreme court's electronic filing system at least 25 times. We've observed a surge in cyberthreats directed toward the lower courts. It's not hyperbole to say that the attacks of this nature can be a matter of life and death. Sealed court documents can include information about confidential informants, classified national security information, not to mention social security numbers, medical records, and trade secrets that would be essential to our economic dominance.
▶ 0:28:37Chair Hagerty: The risk of insecure and unreliable court records is not a risk that we can accept. To defend against these threats and avoid the proliferation after tax currently facing the lower courts, the supreme court's budget seeks a modest increase to enhance its cybersecurity personnel thank you for appearing before the subcommittee today. Justices taking and an barrett, I'm pleased to have you before us today, and I look forward to our testimony. Before you begin, I now want to turn to my colleague, the ranking member, senator jack reed, for his opening statement.
▶ 0:29:05Sen. Reed: Thank you very much, chairman hagerty, for convening this very important hearing. I want to thank justice taking and an barrett for appearing before us. I also want to again note the passing of a dear colleague, senator lindsey graham. I served in the house and the senate with lindsey, and I will describe him briefly as a passionate patriot. He indeed was that.
▶ 0:29:35Sen. Reed: Madam justice, madam justice, both of you have an opportunity to question the members of the court about its budget and operations, and I'll stress budget and operations. This is, I believe, the first time since 2011 that a justice has testified before the senate, and I would hope this would be an annual occurrence, not a decade by decade occurrence.
▶ 0:30:04Sen. Reed: The supreme court is under our constitution the final arbitrator of the rules of the land, but it is still accountable to congress for tax-based funds, which you use to operate. And today's hearing is about your fiscal fy2027 budget request, a budget that's grown significantly in the last few years.
▶ 0:30:26Sen. Reed: We know, as the chairman has pointed out, that you have faced a series of threatening attempts, you and your colleagues, assassination attempts, to online cybersecurity threats, and we know that the number of threats are increasing each year, and it is a substantial justification for budget increases to protect the court and protect the constitution.
▶ 0:30:49Sen. Reed: So I look forward to hearing from both of you about these issues and the needs that you have to protect yourself and your colleagues. In regard to these threats, the court created its own residential security operation, and congress responded to the request with a $28 million appropriation. But weeks after the c.r.
▶ 0:31:17Sen. Reed: Was signed, the court began privately lobbying for another $30 million and we understand security is important, but we also understand that this should be an open process and that your request should come to us and the committee to be disposed of, as we typical 8 do with all appropriations. And I would urge you to adopt that practice.
▶ 0:31:46Sen. Reed: This committee has responded to the court's request for more money, and we hope to do it again. But I must point out that unless we have a top-line budget, both domestic and defense, it's going to be difficult to fund particularly domestic agencies, like the court. And I hope that chair collins will reach that point very soon.
▶ 0:32:11Sen. Reed: The other thing I would just point out, and I know this came up this morning, is that you have adopted a code of ethics, but a code of ethics without effective enforcement is morass operational than practical, and I would hope that this year in your budget request you include funds for enforcement structure, as well as simply the code existence.
▶ 0:32:41Sen. Reed: I'm very honored by your presence today. And I indeed look forward to listening to your responses and to cooperating with you so that we can strengthen the court and provide the support you need to carry out one of the most principal duties in america, which is making sure the constitution is alive and well throughout the nation. Thank you very much.
▶ 0:33:10Chair Hagerty: Thank you, senator reed. Now I'd like to recognize justice kagan for your opening remarks.
▶ 0:33:19Hon. Kagan: Thank you, chairman hagerty, and thank you ranking member reed for giving justice barrett and me the opportunity to appear here before you today. I hope we can do it more than once every three decades. That doesn't seem too much to ask for. To present the supreme court's fiscal year 2027 budget request. I'd like to start, senator hagerty, if I might, the same way you did by speaking a bit about senator graham.
▶ 0:33:46Hon. Kagan: I did this this morning as well, but you've provided me with -- I talked this morning about exactly what you talked about. First, I wanted to say that the entire court wants to send its condolences to senator graham's family and all his colleagues and friends in the senate and elsewhere.
▶ 0:34:06Hon. Kagan: All of us have been through the judiciary committee, and most of us through the judiciary committee, while senator graham sat on it, and there is a great deal of affection throughout the entire court for senator graham, a great deal of affection and respect. I want to add me personal note here. I was nominated to the court by a democratic president. It is not very often that a republican votes for a nominee from a democratic president.
▶ 0:34:36Hon. Kagan: Similarly, it's not very often that a democratic senator votes for a nominee of a republican president. Those are the times we live in. And it's especially uncommon when such a cross-party, if you will, vote comes from a somebody in a deep red or deep blue state.
▶ 0:34:55Hon. Kagan: And notwithstanding that, senator graham voted for my confirmation to be a supreme court justice, and I was very grateful for that, and I was enormously impressed with the respect with which senator graham treated me throughout the process, the seriousness with which he took the process, and as I say, grateful for his vote at end of the process.
▶ 0:35:19Hon. Kagan: But senator hagerty, you referenced something in this last day or so, everybody has been talking about how funny senator graham was. But it's harder to make somebody else look funny than to be fun aye yourself.
▶ 0:35:35Hon. Kagan: And I have to say that day senator graham made me look funny, and that conversation that we had about what I was doing on christmas one year is the conversation that I was told by many people afterwards sealed the deal on my confirmation. So I was very thankful to senator graham for that and for all his kindnesses through that process.
▶ 0:35:58Hon. Kagan: And again, just wanted to repeat my and the broader court's deepest condolences to his sister, to all his friends and family on his untimely passing.
▶ 0:36:09Chair Hagerty: Thank you for that, justice kagan. I appreciate that. In fact, his sister is going to be sworn in during the course of this, well, you may see some of us moving in and out to address that. Thank you.
▶ 0:36:21Hon. Kagan: I would like to note at the outset how appreciative we are of the subcommittee's constructive engagement and support. You and your staff have been with us each step of the way, as we've added security funding to meet the challenges of these times. I personally have enjoyed meeting with a couple of you about these matters, and our respective staffs also speak and share information regularly. I look forward to our future work.
▶ 0:36:50Hon. Kagan: The supreme court's funding is provided separately from the lower federal courts and split between two appropriations, one for salaries and expenses related to the daily operations of the court, and another for care of the willings and grounds. We will -- care of the buildings and grounds. We will address the operating budget today. The architect of the capitol will submit a separate statement concerning our buildings and grounds.
▶ 0:37:13Hon. Kagan: The court's operating budget funds the daily activities you'd expect in any federal courthouse, such as library and research services, case management, visitor services, I.t., facility management, and security. We carry out our work with relatively modest funding. Our budget represents just 2% of the judiciary branches branch's total funding, which in turn represents 1/10 of 1% of the federal budget.
▶ 0:37:41Hon. Kagan: Nonetheless, we take our responsibility as fiscal stewards very seriously. In fiscal year 2027, the court is requesting an additional $14 million, a 7% increase for salaries and expenses. Over the last five fiscal years, the supreme court's funding needs have grown on average 15% per year. Aside from annual inflationary increases, recent growth in the court's budget has been almost entirely for security expenses.
▶ 0:38:12Hon. Kagan: The majority of last year's funding increase went to shifting the responsibility for residential security from the marshal service to the supreme court police. And ranking member reed, I'd be delighted to speak at some greater length about what you talked about, about our receiving one appropriation and then another, specifically for this purpose, for enhancing residential security. I first joined the court in 2010. Our security was very different at that time.
▶ 0:38:42Hon. Kagan: The supreme court police focused almost exclusively on protecting the building, and as for cybersecurity, well, our I.t. Department focused on supporting the latest blackberry devices. I didn't have a security team of my own and was accompanied by security personnel only when I participated in work-related public events. We began expanding our security program in earnest in 2017, initially at the behest of members of congress.
▶ 0:39:11Hon. Kagan: We engaged government and private industry experts to evaluate our needs. We started by expanding personal security beyond the chief justice so the associate justices also received small security details. Much too small as it later turned out. As threat assessments called for larger details and as overtime costs correspondly rose, we requested funding for more officers, vehicles, and support staff.
▶ 0:39:41Hon. Kagan: Other federal courthouses revealed our building's vulnerabilities, we also added new physical security systems. When personal threats increased following the leak of the court's dobbs opinion, we expanded our residential security and threat assessment activities still further. Similarly, as honorableline attacks grew in number and sophistication, we requested additional cybersecurity resources. Our strategy has been consistent.
▶ 0:40:08Hon. Kagan: Expand incrementally, but effectively to meet evolving security challenges. We aren't alone in this, although orders of magnitude smaller. The supreme court's police department is modeled after your own capitol police department. The two departments have matching pay tables and similar organizational charts. They work closely together on threats pertaining to the capitol campus and beyond.
▶ 0:40:34Hon. Kagan: They also face many of the same challenges, especially officer recruitment and retention, and they've implemented many of the same solutions to address those challenges. Over the last five years, the capitol police department's annual operating needs have increased 70%, a figure similar to the court's. For fiscal year 2027, capitol police requested a 16% increase. As neighbors, our two police departments will continue to work cooperatively together.
▶ 0:41:05Hon. Kagan: Our respective police department's growing needs are obvious, given current conditions. The capitol police chief recently testified that threats against congress are up 50% this year. The supreme court police expect a smaller, but still substantial 38% annual increase in threats this year, which follows the 25% increase last year. For some of us, those threats have come very close indeed, as the chairman indicated.
▶ 0:41:35Hon. Kagan: And all of us live with the knowledge that they may again materialize. But appears the chief justice said, most recently in his annual statement, all members of the court continue to do their jobs as they believe legally right, adjudicating cases without fear or favor.
▶ 0:41:54Hon. Kagan: We are grateful to the supreme court police for all they do to support our ability to do so, and grateful to our appropriate fors in the senate and the house for the resources that are necessary to achieve that goal. While we can't comment on decisions or pending cases, justice barrett and I are happy to answer any budget-related questions you may have. Thank you very much, Mr. chairman.
▶ 0:42:24Chair Hagerty: I'm going to now turn it to the committee chair, senator collins.
▶ 0:42:30Sen. Collins: Thank you very much, Mr. chairman. First of all, let me welcome our distinguished witnesses today. It's a great honor to have you here to respond to our questions.
▶ 0:42:44Sen. Collins: I could not help but think, as I heard justice kagan's comments about the 38% increase in the number of threats that it is increasingly dangerous to be a supreme court justice these days.
▶ 0:43:06Sen. Collins: And it's appalling to me that some of the rhetoric is coming from public officials on both sides of the aisle who should know better than to levy personal and political attacks against the judiciary and the courts specifically.
▶ 0:43:31Sen. Collins: For example, in front of the supreme court building, called out two members by name, saying that they had released the whirlwind and that they will pay the price. Other public officials have called the court corrupt, out of control, and serving an extremist agenda.
▶ 0:43:58Sen. Collins: This overheated language, this completely inappropriate rhetoric against the supreme court endangers the lives of the justices and erodes public trust in our system of government.
▶ 0:44:16Sen. Collins: I believe that all of us must avoid that kind of dangerous and disturbing rhetoric, because it could, in fact, trigger violence. So with that as an introduction, let me turn to some specific questions for you.
▶ 0:44:41Sen. Collins: Justice barrett, the supreme court is taking over residential security for the justices from the U.S. marshal service. What was the rationale for that change?
▶ 0:45:00Hon. Barrett: The marshals was always designed to be temporary. They couldn't continue to staff us. In fact, one reason for our supplemental request that was somewhat unexpected is that the marshals unexpectedly told us that they would not be able to provide, continue providing the residential protection and that they were going to end it quicker than we anticipated. They themselves were just stretched thin.
▶ 0:45:24Hon. Barrett: So we had always wanted to take it over ourselves, but we were forced to do that on a quicker timeline, and we are now fully doing it within the supreme court police through a ambition of our full-time officers and contractors.
▶ 0:45:38Sen. Collins: Thank you. Justice kagan, in the supreme court building and grounds, there is a request for $6.5 million to begin the process for an exterior screening facility for visitors to the court. Could you explain why the court needs that separate facility?
▶ 0:46:08Hon. Kagan: Yes, right now visitors walk into the court, and that's why they're checked. That's where they are is not through the magnetometer and checked for weapons and so forth and just as the capitol decided that for security reasons it wished to create a visitor center that was off the main premises, so all the appropriate security checks could be done off premises, that's what we're looking into as well.
▶ 0:46:37Sen. Collins: Thank you. Justice kagan, as you know, the federal judicial center publishes the reference manual for federal judges to use when handling cases that involve scientific evidence. The center whose board is chaired by the chief justice published its latest version of the manual on december 31 of last year.
▶ 0:47:05Sen. Collins: I understand that you wrote the forward to this addition. I am aware of concerns that this version included a chapter that in the judgment of some people disfavored a particular class of litigants by suggesting that contested issues were not, in fact, contested.
▶ 0:47:33Sen. Collins: Are you aware of this controversy?
▶ 0:47:36Hon. Kagan: I have become aware of it. As you say, I wrote the forward. The forward is just a page-long thing that the federal judicial center asked me to provide as other justices have provided for other additions of the book. So I hadn't read the chapter in question prior to that time.
▶ 0:47:56Hon. Kagan: Actually, I still haven't read it, but I know the controversy that you're referring to, which is about the climate science chapter and whether there were statements made within that chapter treating this, treating as uncontested things that many people continue to contest. And the head of the federal judicial center, justice rosenberg, has engaged with the people who have made those criticisms and those objections.
▶ 0:48:25Hon. Kagan: In the end, the federal judicial center has withdrawn that chapter from the book, on the view that anything that gets so many people riled up and anything that so many people think, wow, that was way too hasty, there's still lots of disagreement on things you have agreed upon, should not be in a book.
▶ 0:48:54Hon. Kagan: The entire purpose of this book really is not to take positions on contested and contestable matters. It's to help judges, assist judges with respect to scientific issues, but not with any kind of slant either way. And because so many people did think that that chapter was slanted in a particular direction, judge rosenberg decided to take it out of the book.
▶ 0:49:22Hon. Kagan: I know that she is engaged with members of congress about her decision, about what to do next, about how to make sure that the processes the federal judicial center uses are good ones and that a ■situation like this does not come up again. The federal judicial center is a generally terrific organization, and that's why I was glad when they asked me to write a few paragraphs increasing the book.
▶ 0:49:53Hon. Kagan: This is a book that's existed for 30 years and has, in different editions, has e has assisted countless judges during that time. So I was glad to do that, and I think judge rosenberg's hope is that things will be learned from this experience, and that we won't, the federal judicial center won't ever find itself in this position again.
▶ 0:50:21Sen. Collins: My thanks to you both for your service.
▶ 0:50:24Chair Hagerty: Thank you, senator collins. And I want to thank both of you for appearing today again. Senator collins alluded to the fact that it's becoming increasingly dangerous to serve as a supreme court justice. The statistics underscore that. But beyond the statistics, there's a human aspect to all of this as well. That's the fact that you and your families have to live in an escalated threat environment. So I'd like to start with you, justice kagan. You've been on the bench for 16 years, the supreme court.
▶ 0:50:54Chair Hagerty: You've seen the environment change. If you could just elaborate on how it's change and had how it's affected and you your family.
▶ 0:51:01Hon. Kagan: Yeah, I joined the court in 2010, and it was an entirely different world then. We did everything, you know, I just walked out on the street. I had no security with me at any time. I drove back and forth to work by myself. You know, every so often when I went out to do to do a major security, personnel would accompany me there. But honestly, none of us particularly thought about it at that time.
▶ 0:51:29Hon. Kagan: We started thinking about it in 2016, and the occasion of that was justice scalia's passing. Justice scalia went down to texas for a trip, and when he died, there were no security personnel in the immediate environment. The closest marshals were some two hours away. And that made people a little bit, sit up and take notice.
▶ 0:51:54Hon. Kagan: And right after that, two members of the house, congressman issa and congress manx cummings, they were in the midst of an exploration of the various security services provided to people in government, particularly with respect to the secret service.
▶ 0:52:14Hon. Kagan: And the way that the chief justice described the conversation that they had with him, to us, was this, that congressman issa and cummings came into the chief justice's office and said, you know, we've been taking a long, hard look at security in different parts of the government, and we think you're out of your minds. They said, you know, the office, the director of the office of personnel management has more security than the supreme court justices do.
▶ 0:52:44Hon. Kagan: And surely, the supreme court justices are doing more things that are more controversial on a more continuing basis than the director of the office of personnel management. So the chief conference came into our conference one day and told bus this conversation and said things have got to change, and we started to change them. I mean, there was a little bit of, oh, do we really need this?
▶ 0:53:08Hon. Kagan: Because it's more pleasant to live without security than it is to live with security, so there was a little bit of resistance, but I think people recognized the wisdom of what the congressman had told us. So we started insecrettally, and to increase security presence. We started to think about each individual justice having a separate detail that knew their practices, that knew the way they lived, that knew the kinds of security needs that they had.
▶ 0:53:39Hon. Kagan: And then the big ramp-up after that, there was sort of an insecrettal ramp-up, and that came with the leak of the dobbs opinion when the threat level really dramatically increased for some of my colleagues. And that's when -- what had been going on acquired even more urgency. So I think that that's the history of the thing.
▶ 0:54:09Hon. Kagan: Right now, each of us has a detail of between 4 and 8 security people that accompany us pretty much everywhere. So life has changed a great deal for all of us.
▶ 0:54:22Chair Hagerty: It certainly has since 2010. Even yesterday at the capitol, there was a man apprehend and had arrested pulling up to one of the barricades here, asking for directions to the supreme court, and he had a gun in his lap. So it's striking, and I'm glad we're focusing on this now. Justify barrett, you've obviously served a shorter period of time than justice kagan, but I'd like to know your perspective as well on how it's affecting and you your family and what you've perceived as the threat.
▶ 0:54:47Hon. Barrett: Thank you, chairman hagerty. Yeah, I've experienced it in a very personal way, and I can share just a few of my own experiences. There was a time, and it was shortly after the dobbs leak, when the threats to my life were particularly intense, and my security detail thought it was a good idea for me to have a bulletproof vest. So I took it home from the house, went into my bedroom, threw it down, and turned around and my 12-year-old son was in the doorway, and he said what's that?
▶ 0:55:15Hon. Barrett: And when I took this job, I didn't really anticipate being in a position of having to explain to one of my children what a bulletproof vest was and why his mom had it. But that was one issue. It was reported in the news about six weeks ago, I was the victim of a swatting incident at my house. One of our teenage sons walked out the front door getting ready to head out with friends, and the street was full of county policemen, and then I also had my residential security presence there.
▶ 0:55:43Hon. Barrett: They had responded to a false alarm, saying that there was a gunshot being fired inside my home, and I was very grateful for the residential security, because they were able to coordinate with the county police before the county police entered my home. And the other thing I'll say, and this is not unique to me and my colleagues, but this is experienced by people throughout the federal judiciary, are deliveries. They often come in the name of the murdered son of one of our district judges.
▶ 0:56:13Hon. Barrett: The message that these pizzas and other things that are sent to us, you know, it's fairly clear. They're often sent to members of our extended families as well. They're meant to intimidate, and they're meant to harass, and as the chief justice said in his year-end report, justices and judges throughout the country continue to do their jobs without fear or favor, but it is a very threatening environment.
▶ 0:56:41Hon. Kagan: If I might add a teeny bit, this is a problem not only supreme court justices face, but judges all across the united states, federal judges and state judges as well. And most of them have considerably less in the way of security resources than we do.
▶ 0:56:59Hon. Kagan: It's a special issue to try to figure out how to get better security for judges all over the united states, even as we focus today on the supreme court security needs.
▶ 0:57:11Chair Hagerty: I'll comely to another point that I think concerns all of us and has an impact on your security, and that's the leaking of information coming from the supreme court. If you think about the leaks of confidential supreme court communications, the impact of that, as you both described, the dobbs case is obviously the most famous one, and that precipitated untold intimidation, threats, attempt to murder one of the justices, incredibly sad, but there have been others.
▶ 0:57:41Chair Hagerty: In 2024, there was a leak about court deliberations over cases that involve presidential immunity. Just in april of this year, there was a leak of internal mum dumb discussing the request to stay president obama's power plan. And if you think about it, the dobbs decision underscores this, that leaking this information dramatically increases the security risk on justices. And justice kagan, I'll start with you. Are these sorts of leaks from the supreme court acceptable?
▶ 0:58:12Hon. Kagan: They're not. It dramatically increases security risks and also dramatically changes the way we do our business internally, or at least has the potential to do so. The way we relate to each other depends so much on honest communication among the nine of us, and if the nine of us don't have trust in one another and don't have trust in all the people who work for us, then those kinds of honest
▶ 0:58:43Hon. Kagan: Conversations that we need to do our business are not going to take place. They're at least going to be frustrated. So it's I think 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.
▶ 0:59:13Chair Hagerty: I appreciate that, and I appreciate you making the statement on the record, because it's important a leader like yourself make this clear to everybody. Justice barrett, I'll close with you. Are there any actions undertaken, any changes in procedures that will prevent leaks like this from occurring?
▶ 0:59:29Hon. Barrett: We're doing our best. We have instituted protocols to try to keep better track of who has access to documents, who's touched documents, where they've been printed. We have always required employees to sign a confidentiality agreement, but recently we required employees, we began requires employees to sign a nondisclosure agreement, which we have carveouts for whistle blowers, and that goes beyond what federal statutes require.
▶ 0:59:54Hon. Barrett: But we're hoping that driving the need for confidentiality home with these n.d.a.'s will just be an additional check on employees who are sharing information inappropriately and often illegally.
▶ 1:00:10Chair Hagerty: For all the reasons justice kagan said, I can't support it any more than I do. I appreciate the effort, and thank you. And I'll turn it now to ranking member reed.
▶ 1:00:19Sen. Reed: Again, justices, thank you for your presence and your testimony. I just want to pick up a point that senator collins made about some outrageous statements that are being made by public figures, and I can't think of a more prominent one than the president of the united states. In february 20, following a decision on tariffs, he said, disgrace to our nation, fools, lap dogs and radical left democrats and very unpatriotic.
▶ 1:00:50Sen. Reed: He was describing the supreme court. On march 15, he posted our country was unnecessarily ransacked by the united states supreme court, which is a little more than a weaponized and unjust political organization. Now, I don't agree with anything he said, but if there's anyone in the country that commands more attention, it's the president, and I think that behavior is very dangerous to the court and to our whole system. And I just want that to be part of the record.
▶ 1:01:21Sen. Reed: Justice kagan --
▶ 1:01:22Hon. Kagan: If I could, senator, wherever these come from, and whatever political figure says them, whatever party that political figure is a member of, these statements are really unhelpful. They're dangerous in terms of individual justices' security, and they're not appropriate, the way to treat a coordinated branch of government.
▶ 1:01:52Hon. Kagan: And I think the chief justice had a year-end statement last year where he talked about this issue, and he talked about a criticism that's fair game. I mean, go for it. Life in the big city is the subject to all kinds of criticism. But intimidation is a different thing entirely.
▶ 1:02:14Hon. Kagan: And when political figures of any stripe are trying to intimidate judges and justices to do things that they like rather than the things that they don't, that's where we really have crossed the line.
▶ 1:02:27Chair Hagerty: I think you're exactly right, your honor, and you said it well.
▶ 1:02:30Sen. Reed: You wanted a moment to talk about the process where the $28 million request was made through appropriations channels and $30 million appeared suddenly through private channels, please.
▶ 1:02:43Hon. Kagan: Yeah, I think justify barrett referenced this a bit, and first off, we apologize if we did anything to procedurally improper. But the reason for the additional act, if you will, was that we were suddenly confronted with the loss of U.S. marshal protection. And we thought that we were going to have U.S. marshal protection at our residences for another six months.
▶ 1:03:13Hon. Kagan: And you'll of a sudden we learned from the justice department that was going to be impossible, so we had to do some sort of quick footwork to try to get additional moneys in order to cover that six-month gap. And as I say, if we did that in a way that was procedurally less than optimal, my apologies.
▶ 1:03:36Sen. Reed: Your security is more important than procedural niceties. There's no issue here. I mentioned in my statement that the court has adopted a code of conduct, but without an enforcement mechanism, it's morass operational than real. Is there anything, and both you and justice coney, is there any attempt to create a very effective enforcement system?
▶ 1:04:05Hon. Kagan: I guess I would start by saying I regard the code of ethics as more than aspirational. We've all nine made a commitment to follow it. So I consider it binding on me. I would also think that we all the draw on resources within the court to make sure to help us to the end of discharging our ethical responsibilities. Whenever I have a question, I consult our legal counsel inside the court.
▶ 1:04:31Hon. Kagan: On the question of enforceability, I think you put your finger on what is a very difficult question. It's a complex question. It's one we talked about a lot as a conference, and I don't think it's one we're entirely at rest on yet. If I could say a few words about some of the complexities. One is it's just tricky to figure out who would be the entity to enforce such a code. You know, sometimes people have floated the idea of an inspector general.
▶ 1:04:56Hon. Kagan: Well, if that comes from the executive branch to have someone from the executive branch inside the court supervising the court's work, that's a problem. It needs to come from within the judiciary and then you have the awkwardness of we review the work of other judges within the system, but then they would be sitting on the committee to review ethical complaints, and that creates its own awkwardnesses.
▶ 1:05:19Hon. Kagan: So we've talked about the possibility of senior judges or retired judges, but then there's still, it's a structural problem, because then you need to have an appeal process. The way the lower courts work is they judge these things at the circuit court level, but then you can appeal it up to the judicial conference's committee on judicial conduct, and then up to the full judicial conference itself.
▶ 1:05:44Hon. Kagan: So that mechanism would put, again, judges from the lower court reviewing our code. So 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.
▶ 1:06:04Hon. Kagan: But I do want to stress, ranking member reed, that monday of my colleagues and certainly -- that none of my colleagues and certainly not I think ourselves above the law or above ethics in any way.
▶ 1:06:15Hon. Kagan: And I want to say I agree with that. I come out in a somewhat -- I think for me, I'm not so much in flux on this issue. 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. But I think important I think for public perception of the court.
▶ 1:06:41Hon. Kagan: 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. And I completely agree with justice barrett that this cannot be something where the executive appoints somebody or congress appoints somebody who has a particular role in the process t.
▶ 1:07:04Hon. Kagan: Has to come from within the judicial branch itself, if the supreme court is to remain independent, and it's incredibly important that it remain independent. I think that we can figure out a way around some of the complexities that justice barrett talked about, about using senior judges or retired judges, to be our policemen, if you will.
▶ 1:07:33Hon. Kagan: Even though I agree, it's agents bit of an awkward structure to have policemen for the judges who are at the apex of the branch. Agree with everything justice barrett said about the need to do this within the judiciary and the complexities of that. I would say we should find an enforcement mechanism.
▶ 1:08:01Sen. Reed: Thank you. Just a final point, the court has not escaped the situation of every other branch of government, which is, according to polling from pew, 48% of americans have a favorable opinion of the supreme court. That's down from 70% five years ago.
▶ 1:08:21Sen. Reed: And I think putting in these types of institutional checks might give more confidence to the people that, you know, there's nothing wrong at the court. The other thing, though, it goes back to the initial point of these inflammatory statements made by public figures, politicians, etc., are not helpful to the court's prestige.
▶ 1:08:46Sen. Reed: I think we should recognize the court plays a unique and fundamental role, and we should respect that role. Thank you very much.
▶ 1:08:57Chair Hagerty: Senator durbin.
▶ 1:08:58Sen. Durbin: Thank you all for being here. I follow up senator reed's two areas that I want to address. And one is the statements made by elected officials and others. Derogatory of judges, justices, and the court. Tomorrow we're considering attorney general, acting attorney general todd blanche's nomination, who has said of the court that they are rogue activist judges, repeatedly claim the administration is "at war" with the federal judiciary.
▶ 1:09:30Sen. Durbin: That kind of rhetoric, I think, is unacceptable on either side of the table, democrat or republican, liberal, conservative. It just inflames people and has them thinking in terms of violence that may reach physical violence if we're not careful. So I want to add to the chorus that violence is unacceptable in any stage of the spectrum.
▶ 1:09:54Sen. Durbin: Secondly, we had some terrible incidents in the northern district of illinois not that long ago, where one of the federal district court judges had a disgruntled person that appeared in their court, then went to her home, and took the life of her mother and husband. Horrible incident that occurred. Since then, I've done my best to try to provide the resources, not just for that court, but for the courts across the country.
▶ 1:10:24Sen. Durbin: I'm elicits your response, I think your position on capitol hill makes you a little different than most, but is it your impression, it is mine, that speaking to judges, they often lament the fact that they're waiting for the g.s.a. To respond to security measures in their courts, court buildings.
▶ 1:10:44Sen. Durbin: We have a proposal that I'm working on, which would allow the courts themselves to administer and monitor these funds, to see if they can do it more quickly and professionally and thoroughly. Are you hearing responses from other courtrooms around the country of security concerns that are going on?
▶ 1:11:09Hon. Barrett: Yes, and I think that's part of their budget request. I served with that judge when I was on the seventh circuit, and I think precisely because of those sorts of things, yes, it is my understanding at the lower federal courts are also in great need of security funding and have been pushing for that in their courthouses and g.s.a. As well.
▶ 1:11:30Hon. Kagan: We're in a bit of a different position, because we don't use g.s.a. We're under the capitol architect and have done very well with the architect of the capitol, which that office has always been very acontinue active to our needs. But lower federal courts are reliant on g.s.a., and I know have some significant concerns.
▶ 1:11:53Sen. Durbin: Very much so. It's interesting, a few of the judges came to capitol hill to speak to members, and each time they would speak to one of the senators about this situation in their courthouses, they got the same response, where do we sign up for going a different route, more efficient route, quicker response when it comes to security? And I just say, Mr. chairman, that I think is going to follow on our jurisdiction here in the future, and I hope we take it seriously. I thank you both for being here today.
▶ 1:12:29Sen. Boozman: Thank you for being here. We appreciate your service and sacrifice, not only you, but your families. These are certainly family endeavors. And again, we really do appreciate that. I had the opportunity to chair this committee several years ago, and during that time it was well known that you all were perhaps the most efficient entity in government as far as taking care of your finances.
▶ 1:12:56Sen. Boozman: I think we actually had you all send back some money on occasion, which is totally unheard of here. So we appreciate the fact that you do a good job in that regard, regarding --
▶ 1:13:10Hon. Kagan: We probably took pride in that.
▶ 1:13:14Sen. Boozman: Yeah, yeah. Well, again, it's an unusual thing that happens. So we do appreciate the fact that you're serving and the risk that you're taking. Let me ask you something that we haven't I don't think gotten into.
▶ 1:13:30Sen. Boozman: Right now, can you tell us if there are any barriers currently hindering the sharing of threat assessment and risk mitigation between the court police and outside agencies such as the marshal, capitol police, local police departments? Is all that working well?
▶ 1:13:48Hon. Barrett: I'm actually not certain about that, senator boozman. We can have our staff get back to you with specifics about that. I don't know, do you have more knowledge about that?
▶ 1:13:56Hon. Kagan: I was just going to say I think at least the relationship between the supreme court police and the capitol police is excellent. They talk to each other all the time, and they exchange information with each other. And I think that increases the effectiveness of both. So I think that that's a relationship that's at an extremely good place.
▶ 1:14:20Hon. Barrett: The other ones, we're not sure.
▶ 1:14:23Sen. Boozman: No, and I was curious if they were doing tactical training together or whatever.
▶ 1:14:32Hon. Kagan: We can get you more information on that.
▶ 1:14:35Sen. Boozman: That is something we would certainly be willing to help you with if that is not the case. Tell us about staffing. So many entities, various police department throughout the country, you name it, they are having trouble with staffing problems, attracting the quality of people we would like. Our law enforcement has a tremendous job but that is an issue. Do you see the same issue?
▶ 1:14:59Hon. Kagan: It's a challenging environment in which to hire police officers. There are fewer police officers than there is demand for police officers. I know the capitol police is experiencing that and we are certainly experiencing that so we are trying to ramp up but in this environment, where the supply is less than the demand, we have used various kinds of recruitment incentives and we have tried to structure our pay in order to really compete well
▶ 1:15:34Hon. Kagan: For police officers and we try to ensure we are the best possible place to work. I think we are making great strides so we really have increased our police force substantially but we still have a ways to go to get it to where we want to be so it is still sort of foot on the gas and this is not something that can be done overnight to get a quality police force.
▶ 1:15:58Hon. Kagan: I think we are still looking for 100, 150 more officers and that will take some time.
▶ 1:16:06Sen. Boozman: So tell us again. You have this fiscal year 27 request in. You increase funding. Tell us how that request will increase security to make the court in your lives safer.
▶ 1:16:22Hon. Barrett: Sure, so I can take a crack at that. The items we are hoping to find through this 2027 fiscal year request our personnel is the biggest line item and that would be for new officers and our dignitary protection unit and building security officers. That is what the bulk of the money as 4, 14 .6. We would like another residential security office.
▶ 1:16:50Hon. Barrett: We are running out of space inside the core building to house the new security officers staffing the residences so that accounts for another 2 million. 12 new cybersecurity experts to deal with the increasing threats to our court systems which chairman hagerty mentioned before and then annual inflationary increases and you know, that is about it. >> very good. Well, thank you, Mr. chairman.
▶ 1:17:22Hon. Barrett: We appreciate your service and sacrifice and I think you make a very compelling case. A great argument. You are in a different situation now, not hearing an argument. You are giving an argument and so far, you are doing very well. >> thank you, senator.
▶ 1:17:42Hon. Kagan: It's easier to be up there.
▶ 1:17:44Chair Hagerty: Senator coons. >> thank you very much, senator hagerty. I served alongside senator boozman on the same subcommittee. It was part of my responsibilities and having seen some really disturbing incidents at the state and local level and federally, I welcome this conversation.
▶ 1:18:14Chair Hagerty: Senator cornyn and I worked together to promptly introduce and get unanimously passed the parity act in 2022. I have a couple bills I want to talk about but let me pick up where senator durbin left off and reference back my time on fs gg. The judicial conference described the condition of the federal judiciary's facilities as having reached a crisis point and I would say that is certainly true of the courthouse in delaware.
▶ 1:18:42Chair Hagerty: Asked congress to create a separate judiciary building service that would transfer responsibility from the general services administration for the judiciary. I would be interested in what you think of this proposal and whether creating a new jbs would be preferable to reforming gsa and whether assuming direct control over courthouse management might reduce costs or might be a needless burden on the federal judiciary.
▶ 1:19:10Chair Hagerty: >> we probably don't know enough to be able to comment on that. I think we have heard, we said before, frustration among federal judges. About the current system. How it should be changed, we are not prepared to say.
▶ 1:19:28Sen. Coons: We would welcome your input on at some point because I clerked for judge roth in a courthouse that when I had visited recently is exactly the same and with the same security challenges that it had 40 years ago. The primary role of the marshall service is to protect the federal judiciary and the federal court system and to enforce federal court orders. It is housed within the executive branch and overseen by the attorney general.
▶ 1:19:56Sen. Coons: Your court has already moved away from marshall service protection as we discussed to build a police department answerable to the court. Do you think other federal courts should also follow suit? Should congress move the marshall service out of doj and into the article three branch and do you think the judiciary's reliance on the executive branch for security and enforcement of orders creates any separation of powers?
▶ 1:20:19Hon. Barrett: I think that is another one on which we are probably not prepared to opine. What I will say is that I thought as the seventh judge and during my confirmation process, the U.S. marshals service gave me great protection and you know, when they were outside of our homes, we were all grateful for the marshall service being there. On the broader separation of powers question that you post, I am honestly not sure.
▶ 1:20:44Hon. Barrett: I don't know whether the lower courts are asking for that as well to have in-house security and to be free of the marshall service. That strikes me as a more complex question that I am not sure we can express a view about.
▶ 1:20:55Sen. Coons: My question had two components. One was as protection for federal courts in federal court officials and the other was the enforcement of court orders. We have not seen any problem with that recently. It struck me as a question well worth your input to the extent you are comfortable.
▶ 1:21:14Sen. Coons: For state and local courts, senator cornyn and I have been encountering attacks on our act which would establish a resource center because frankly, state and local judges, many of whom have faced threats and a number of whom have tragically been killed, they do not have the intelligence sharing in the coordinated and professional protection resources, the federal judiciary.
▶ 1:21:40Sen. Coons: I know you're not going to opine on a piece of legislation but I just -- could you help give me any input on what you have learned about how security concerns can affect a judge possibility to make sound legal judgments? How important is the physical security of the judiciary at the state and local level to the independence and strength of our judiciary?
▶ 1:22:00Hon. Barrett: Senator, I am glad to hear that you're focusing on this with senator cornyn because I think it is critically important. For one thing, you're not going to attract the kind of people who you want serving in any of these positions at the state or federal level if they feel like the security of them and their families will suffer and suggest the ability to deliver the kind of justice that we hope that our courts can provide will suffer.
▶ 1:22:26Hon. Barrett: And I do think that judges at both the state and federal level are holding strong despite intimidation and threats and I think that is a tribute to the constitutional system. However, I don't know what to say about what might happen if somebody were really persistently being threatened and harassed in that kind of way. I think we need to have our courts be able to operate independently and safely.
▶ 1:22:59Sen. Coons: I serve on the foreign relations committee and I am directly familiar with instances where physical threats to the families of justices and judges change the outcome of the important decisions and other countries. I will not impugn any country by reference. It is not unheard of globally. I think we need to guard against that happening here. Senator cornyn and I have been prolific and we got signed into law. Signed in 2022.
▶ 1:23:29Sen. Coons: This followed an investigation that found 130 federal judges failed to recuse themselves from matters involving parties where they held a financial interest and it covers the whole federal judiciary including justices. They are required to publicly publish annual disclosures and submit periodic transaction reports for significant security trades just as members of congress do. The justices are in compliance but we have a serious compliance issue across the rest of the federal judiciary.
▶ 1:23:58Sen. Coons: Only a quarter of judges disclosures were posted on the timeline required in statute and we are still waiting for more than 200 disclosures from 2024. See it as a requirement, not a suggestion. Justice kagan, why do you think so many judges in the federal court system are having difficulty complying and dusted judiciary need additional resources or clarification to help ensure compliance?
▶ 1:24:23Hon. Kagan: I am not sure what the answer to that is. For sure, you are right, senator, that compliance is of great importance in this area and I am glad you said that we are in compliance. And you know, I am not sure what you build us so I am not going to be able to comment on your bill but there is no question that every judge should be in compliance with those requirements.
▶ 1:24:53Sen. Coons: The version that applies to congress has a financial penalty when you're disclosures not submitted on time. Diversion applying to the judiciary does not and I wondered if you thought we should harmonize legislation.
▶ 1:25:05Hon. Kagan: That I will take a pass on. But I just want to say, like justice barrett, I think it's great that you and just as corn in our pursuing -- taking seriously the threats to the judiciary, the threats to the rule of law, how we can make sure that the judiciary is as fine as it can be.
▶ 1:25:30Sen. Coons: I welcome any follow-up that the judicial conference or that the court wants to make on a number of those points. Last, I will just reference you had a robust discussion about the ethics code about the mandatory ethics code and I appreciate that you are committed to enforcement and that you are recognizing the challenges within the hierarchy of article three.
▶ 1:25:53Sen. Coons: But I do think just speaking for myself that there is a genuine appearance issue and I would urge you to work diligently to find a way to deliver a judicially created but effective enforcement mechanism so some of the transparency and ethics concerns that have been raised about the court can be addressed .
▶ 1:26:14Sen. Coons: I am the vice chair of the ethics committee in the senate and I think the fact that there is an enforceable ethics code that applies to every senator and senate staff and that we on occasion to publicly known and much more frequently not known actions is an important part of trying our best to preserve confidence in the institutions of our government. Thank you for your testimony today.
▶ 1:26:40Chair Hagerty: We have been joined by the ranking member, senator murray. You have been recognized. >> thank you for being here today. We appreciate it. Like everyone, I really respect the separation of powers and the importance of an impartial and independent supreme court so it is important for all of us on this committee to fulfill our responsibility to oversee taxpayer dollars. So I just want you to know I really appreciate both of you being here and participating in this hearing.
▶ 1:27:09Chair Hagerty: I do have several questions for both of you about the court's budget and operations but before I go to that, I do want to say I am very troubled that the current president challenges and has challenged our system of checks and balances in very unprecedented ways and the court has made some incredibly consequential decisions without any real process or explanation by relying on the shadow docket and it's also unbelievably important to the functioning of our democracy that we have a
▶ 1:27:40Chair Hagerty: Well-functioning, independent judiciary trusted by the people of this nation. That requires transparency and it requires the american people to be able to know you are calling balls and strikes and not making decisions based on any financial conflict of interest and what is behind those decisions so I urge you to keep those issues in mind and if either of you have any comments on that, particularly on the shadow hearings, I would appreciate it. Justice kagan?
▶ 1:28:08Hon. Kagan: Sure. This is something that we -- there are many facets to the shadow docket and we discuss and debate them and sometimes disagree about them.
▶ 1:28:28Hon. Kagan: In recent years, we have increasingly received these requests to move fast and to move before a case wends its way through all the levels of review. And you know, we have to decide what to do with those requests. We argue about the standards to be used. We argue about how those standards apply in particular cases.
▶ 1:28:57Hon. Kagan: Sometimes, just as bear and I have agreed. Sometimes, just as fair I think for myself, what the court is doing better on but is not completely there on is even when we feel as though an earlier decision is appropriate, finding ways to incorporate greater process into our decision of those cases, so have oral
▶ 1:29:29Hon. Kagan: Arguments, have briefing, make sure to explain ourselves in our decisions more than we did that may be a year or 18 months ago when we first started being swamped with these applications.
▶ 1:29:46Hon. Kagan: I think we can still improve what we are doing and I think you are exactly right that transparency is important, that people need to know, lower court judges need to know, litigant needs to know, but the public needs to do what it is we are deciding and why. There are occasions where emergency relief is absolutely appropriate. And it is finding those occasions but no others that is the challenge of this.
▶ 1:30:14Sen. Murray: I appreciate that response and I don't know if you have anything to add.
▶ 1:30:19Hon. Barrett: I think one of the challenges, we are trying to adapt and respond to the number and character of applications that we receive. One of the challenges is on our merit stock, we have a very well established process for handling cases and each case is treated the exact same way.
▶ 1:30:38Hon. Barrett: Same deadlines, same briefing limits, oral argument, etc., and as justice kagan alluded to, it's a little bit different with emergency applications because I don't think any of us takes the position that we should have an opinion written for any one of them or oral argument for any one of them so it's not quite the same one-size-fits-all process on the emergency document that we have on the merits so I think what we are working on now is figuring out which ones do want that process.
▶ 1:31:05Hon. Barrett: The oral argument, more briefing, and which ones should be handled in-house, which ones want more explanation, which ones should just be an order and I think that has been something we are just working through.
▶ 1:31:16Sen. Murray: I encourage you strongly to work to that and make it clear, especially at this time, whether it comes to trust or transparency or truthfulness, the public needs to know and I think you need to recognize that this is a serious question that many of our constituents have so please, continue your work and reach a goal and I think everybody would support you on that. So thank you.
▶ 1:31:41Sen. Murray: On your budget request, this committee does take security threats facing the supreme court and everyone who signed up to serve the public extremely seriously. That is exactly why congress provided 58 million dollars in additional security funding in fy 26 to address some of these increased threats and vulnerabilities.
▶ 1:32:02Sen. Murray: Unfortunately, the court made a request for over half of this funding at the very last minute without any public explanation or justification of the need for that funding after we had already provided $20 million in the continuing resolution last fall so I just want to ask both of you, will you commit to making public all relevant budget request documents in the future including for any unanticipated supplemental funding needs?
▶ 1:32:25Hon. Barrett: Absolutely. We want to be transparent and justice kagan had apologized to the ranking member hirono court's behalf if we did anything that was suboptimal, seeking of the funds, they were in response and we made those requests in response to unexpected needs like the premature -- we did not expect the marshall's to stop and drop residential security as quickly as they did and they told us we are going to end it six months
▶ 1:32:56Hon. Barrett: Before we anticipated it and that was one of the big line item reasons for seeking that extra money so it's my understanding that our staff was transparent with the committee about what the money was being spent on that absolutely, we want to cooperate and recognize your important role. >> that is really important for you to make sure we have that documentation. Our constituents require us to be very transparent about where their tax dollars go and we need that budget information from you.
▶ 1:33:26Hon. Barrett: We want to make sure the court has first-rate security but we have very little information about how you are actually building this type of security capacity that you are standing up your own police and residential security is not an easy task. How long do you think it will take to be fully staffed and operational? Secondly, what expertise are you relying on to make sure your personnel have the facilities and the training and the capacity you need?
▶ 1:33:56Hon. Kagan: We have a goal of 477 police officers where we are a ways away from that right now. If we include people we got through contracting, we can probably do it within a couple of years. In order to have our own employees get up to that mark, then we are probably talking more like six years. Into the 20 30's.
▶ 1:34:28Hon. Kagan: As to what kind of training is being used, I think we are going to have to get -- unless justice barrett knows more than I do, we are going to have to provide you with further information about that. I am confident that the kind of training programs that we have put in place are good ones but I cannot give you a whole lot of detail about that. >> that is something we need to have in order to provide the budget for use and we would appreciate that back.
▶ 1:34:56Hon. Kagan: And finally, I just have a few seconds left. I agreed with senator coons talking about the code of ethics and I just want to reiterate that. As my colleagues have pointed out, that code is self enforced and it is a weaker code of conduct then all the lower courts have been held to.
▶ 1:35:17Hon. Kagan: For example, it essentially allows justices to decide for themselves whether or not they are engaging in a political activity or accepting inappropriate gifts. I know you have been asked this both in the house and a number of people have mentioned it but I want to add my name and voice to the fact that we need and our constituents need to know that you have a code of ethics that you are held to high standards because that again is about transparency and it is about returning confidence to the court decisions that are being made so I appreciate it.
▶ 1:35:48Hon. Kagan: Thank you. >> thank you, senator murray. Senator husted, you are recognized. >> thank you, chair fischer. Thank you very much for being here today. You debated whether it's better to be on that side or this side and I will tell you as having been a petitioner before the court, it's much better to be on this site.
▶ 1:36:11Hon. Kagan: I think that you have made a strong case for your security, the funding for your security requests and I think we all have a growing concern about security issues with the court. Justifiably so.
▶ 1:36:27Hon. Kagan: I hope that we will get a budget done and get an appropriations bill passed and settle on these topline discussions so that it does not set the stage for another government shutdown so I am hopeful that this is one of the many issues we can get agreement on and get a bill passed. In talking about any problem, I always try to look at the root cause. What is the root cause of the problem we are trying to address?
▶ 1:36:54Hon. Kagan: I know the issues regarding fiery rhetoric through venues like social have been attributable to some of the increased security threats. So I was running -- wondering as well, have you seen any of these threats from the information you have as organized threats either domestically or internationally? That would be to some of these increased security threats?
▶ 1:37:26Hon. Kagan: Justice kagan, I will start with you. Just as coney barrett, please follow up if you have any thoughts.
▶ 1:37:32Hon. Kagan: Our sense of the threats is that it's more than actors but you know, perhaps --
▶ 1:37:40Hon. Barrett: I think that is one that our staff, if you would like more information in a private meeting because I think they do know some things about some of the sources of the threats but probably not something we should say in a public setting. >> I appreciate that. We will try to get more information on that because I think it could help further make the case for why this is an important issue.
▶ 1:38:10Hon. Barrett: In the cases of the security cases and the threats and things like that, do you believe that they are intentionally designed to intimidate you to alter or change the opinions of the court?
▶ 1:38:24Hon. Barrett: It's hard to see how some of them are not designed to do precisely that. They are designed to intimidate or designed to punish after decisions that the person sending the threat did not like as a warning not to do it in the future.
▶ 1:38:44Hon. Barrett: It is hard to interpret between the anonymous deliveries that I sent as anything other than an intent to intimidate and influence decisions.
▶ 1:39:00Hon. Barrett: >> lewis who -- the issue on the dog's opinion which was late, are we any closer to knowing how that happened and are you satisfied with the efforts to find out how that occurred? >> we did a serious internal investigation and could not come to a conclusion about that issue. It is not that we closed the books on it.
▶ 1:39:29Hon. Barrett: If we get any further information, we will pursue it till the end and I know the marshal of the court who was in charge of that investigation feels that that is her responsibility as to whether it will happen. I don't know. >> ok.
▶ 1:39:52Hon. Barrett: We know, this is one of the responsibilities I think we all have as public officials is to watch our rhetoric and how we describe things and it certainly has not gotten better, no doubt about that, and the words people trees can be very inflammatory.
▶ 1:40:19Hon. Barrett: But also, the words that are sometimes chosen in judicial opinions have seemingly, to me, grown rather inflammatory on occasion and not necessarily with the supreme court. But at all levels of the courts. Are you concerned about that? Is there any discussion about the words that are used in coming up with legal opinions that may indeed contribute to the problem?
▶ 1:40:44Hon. Barrett: I think all justices and judges write their own opinions and speaking for myself and my sense of how judges think about this generally is that our goal is to disagree about ideas without crossing the line into the personal.
▶ 1:41:05Hon. Barrett: In my own experience and the experience of the judges with whom I served, I think that is a line that judges try not to cross because one thing I think that the courts, not just the supreme court but courts generally can model for the public is the way to have disagreements that can be very serious about weighty issues that can be sharp but that avoid descending into that kind of unhelpful rhetoric that gets very personal.
▶ 1:41:29Hon. Kagan: That is exactly the way I feel about it. When I dissent, especially in an important case in which I care about a great deal and other people do as well, I want it to be a strong dissent, a pointed dissent and I want people to understand why it is I am taking the trouble to dissent that I don't want it to be a personal dissent. I don't want to do anything that is ad hominem with respect to my colleagues. People can make mistakes.
▶ 1:41:59Hon. Kagan: I can make mistakes with respect to that. I like it when one of my colleagues calls me and says, take out that line. You know? I think we do that for each other and I think that is a good practice. >> I appreciate you sharing that because I think it is important. You are the highest court in the land.
▶ 1:42:23Hon. Kagan: They hold you up, in esteem, and what happens at the court is very, very important in setting the tone just as we have that responsibility, too. It's a responsibility -- collective responsibility that we can all discuss being here in this hearing today about how we can all get better doing this. It collectively contributes to this environment that I think we are all struggling through right now. Let me just finish up with some cybersecurity.
▶ 1:42:54Hon. Kagan: I know some of the money for cybersecurity -- explain the context for what threats you are experiencing there, how that impacts the court.
▶ 1:43:08Hon. Barrett: We received north of 200 million attempts to breach the system. That is on track to practically double this year. Ai is making it easier for people to find vulnerabilities and all entity systems to exploit that so we are trying to keep up. We would like to have 12 new cybersecurity experts and the goal is to try to keep our systems say so they cannot be penetrated.
▶ 1:43:34Hon. Barrett: Some of the lower courts have had debilitating breaches of security and we want to prevent that from happening to us and of course, it can compromise all sorts of confidential information, confidential witnesses, it can endanger national security so we take that very seriously.
▶ 1:43:48Hon. Barrett: I am frankly amazed we have done as well as we have up until now if we think about the number of people who want to know what we say before we say it. The number of people who, you know, millions and billions of dollars depend on it. Other nations. -- other nations might want to receive information before we publicly announce it. It is sort of amazing to me that we have done as well as we have.
▶ 1:44:14Hon. Barrett: But we don't want to -- you know, we want to make sure that that success record continues. >> thank you for being here. I think you're congress today at senate is helpful to both the court in the country so thank you.
▶ 1:44:30Chair Hagerty: Senator fischer. >> thank you, Mr. chairman. I want to thank you both for being here today. You don't have to be here so we appreciate you coming forward to help us have a better understanding of the threats that you face and the budget, the resources you need to make sure that you address those threats.
▶ 1:44:51Chair Hagerty: I know that the court has expanded its personal protection mission in recent years in response to an uptick in those threats to yourselves, to your families, and to the court building itself.
▶ 1:45:10Chair Hagerty: The president, vice president, cabinet members, congressional leadership, other dignities, they all receive a level of personal protection that meets the threat environment that they face. Do you believe that it is important for the court to rely on personal protection structure as comprehensive and consistently resourced as -- as comparable officials and other branches?
▶ 1:45:40Hon. Barrett: I do. I would refer back to 2016. And the congressman pointed out that our security was not even as great as that provided to the director of opm.
▶ 1:45:56Hon. Barrett: I wish I did not need security that I need now because interest in kagan's head earlier, it's more pleasant to travel around without security but I do think that we need that and right now, our details range between four and eight personal members depending on the justice. It's my understanding that cabinet level is around 20, 2220 two, to try to prevent burnout and that sort of thing.
▶ 1:46:21Hon. Barrett: I do think it is not feasible to manage this around-the-clock kind of protection with the detail of 48 people.
▶ 1:46:28Sen. Fischer: When you look at the level of the threat you are facing personally, do you believe justices should receive secret service level type protection? When you say there could be up to 20 for a cabinet member, do you believe that that has to increase for you as well personally and that you tying your residents and families?
▶ 1:46:55Hon. Kagan: The important thing is to have the level of attraction be appropriate for us and however that compared to the president is less important so it's not like we have to equal the secret service or anything. What we need is the level of protection that we think will make us secure. I think that is what we are working towards as justice barrett said.
▶ 1:47:21Hon. Kagan: If you think our personal details are four to eight, there's a lot of overtime involved in those four to eight people. There is a danger of burnout. We really would like to more like 12 and I think that at that point, our security experts have decided that that would be the appropriate level for us and a level that keeps us secure.
▶ 1:47:43Hon. Barrett: When I said that number, that is counting the residential security, and I was not referring just to those with this -- those with the justices during the day.
▶ 1:47:55Hon. Kagan: It is true sometimes I will go some place to an event and there will be cabinet members and I drive up in my one car and five cars outside for a single cabinet members who even now, I think that we are -- we have less protection than some.
▶ 1:48:16Sen. Fischer: In my note that you are really facing a lot of institutional headwinds as well as at this time, whether it is the philosophical attacks on the jurisprudence that you have, the institutional design of the court itself and even questioning the institutional legitimacy of the court.
▶ 1:48:43Sen. Fischer: I believe justice coney barrett, you talked about earlier in response to a question, you mentioned the threats to the institution and while I happen to think those are merely grave, grave threats to the institution itself, I think what we are looking at here are the physical threats that you personally are facing.
▶ 1:49:12Sen. Fischer: Can you, justice kagan, can you describe the importance of the security of the court and when we do here rhetoric about the legitimacy of the court, how does that personally affect each of you when the court is being attacked but in effect, you are?
▶ 1:49:34Hon. Kagan: The excessive rhetoric come from all over the place and it come from members of each political party and that is incredibly unfortunate for reasons that we have talked about before, that you know, criticism is fair game.
▶ 1:49:51Hon. Kagan: Everybody has a right to criticize the court, plenty of things the court does that people can criticize but where it's -- where becomes intimidation and incitement to violence, that is where the line is crossed. In serious people should know not to make statements like that.
▶ 1:50:17Sen. Fischer: I wanted to ask about the cybersecurity of the court and your leadership role, how that plays out among all the federal courts with cybersecurity? Do you have a pattern of what you are doing to make sure you can have secure -- a secure court there?
▶ 1:50:46Sen. Fischer: It is national security on what you are doing. How do you implement that at lower levels?
▶ 1:50:53Hon. Barrett: We run a different computer system. I know the lower courts are in desperate need of updating their computer systems and they have been really attacked and in large part, it's because these systems are so updated so I know that in their budget requests is additional money to try to improve the cybersecurity of their systems.
▶ 1:51:17Hon. Barrett: Because we are on a different system, we don't share the same informational systems. Our cybersecurity operates differently. I'm not sure. I am not the cybersecurity expert. I am not sure that what we implemented apart from things like best practices which translate exactly into the lower court context.
▶ 1:51:39Hon. Kagan: I am assuming you are seeing increased threats from foreign actors as we are across government, across business. Are you in the process right now of transforming your cybersecurity to address possible attacks there?
▶ 1:51:58Hon. Barrett: Our cybersecurity is designed to strengthen it across the board. Some of them come from foreign actors but I know that some of this information is beyond what I have access to at the moment and some of it may be sensitive but I think it's important for you to know it and our staff can follow up from you in a private setting. We can give you details about the kind of threats we have had.
▶ 1:52:23Sen. Fischer: Thank you both again for being here.
▶ 1:52:27Chair Hagerty: Senator. >> justice kagan, justice barrett, thank you for your service. I know you've answered a lot of questions here. A lot of territories have been covered and I want to circle back on a couple points and one is public trust in the courts, public institutions.
▶ 1:52:52Chair Hagerty: It is vital to the public court of law in a functioning democracy and I'm well aware of the fact that congress's public standing is pretty low but it's also true that public confidence in the supreme court has been sinking dramatically in recent times.
▶ 1:53:11Chair Hagerty: There are lots of factors for that and I think a contributing factor is the lack of a framework -- enforceable framework for your code of conduct in the supreme court conducted a code of conduct a number of years ago but as you testified, there's currently no enforcement framework and justice kagan, it's been pointed out that a few years ago, you argued that it's a personal matter for yourself and you
▶ 1:53:43Chair Hagerty: Thought that the court should proceed -- highly respected judges with a great deal of experience, with the reputation of fairness, that kind of solution. Has any progress been made since you made that statement by the court in trying to establish that kind of system? Maybe you can give us a progress report if there is any I'm trying to put that in place?
▶ 1:54:10Hon. Kagan: I do still believe that. I think we continue to talk about the issue amongst ourselves. I cannot really say what the nature of those conversations are that would not be fair to my colleagues. I think it remains a unresolved question. >> as a cosponsor of the act, I hope you act before congress does.
▶ 1:54:37Hon. Kagan: I would like to see the supreme court act on its own but I do think there needs to be an enforceable framework and I believe at some point, there will be the most to do that if the supreme court does not do it itself. On a related sort of question of public confidence, I want to ask you about prediction markets because prediction markets have faced very little federal oversight, largely self-regulating.
▶ 1:55:01Hon. Kagan: We have already seen insider trading by a governor -- government officials and other branches and in the military and a supreme court justice and their staff have access to similar information. They are not immune from this trend. Here are some of the event contracts currently being offered on caution. Who will be the next supreme court justice? Will trump be held liable for january 6? Will the independence of the judiciary be weakened?
▶ 1:55:32Hon. Kagan: Clearly, members of the senate and senate staff could have information that could be helpful to them in playing the prediction markets? The senate has now adopted as a matter of senate rules and prohibition on doing that. So my question to you is will the court do the same both for justices and for staff of the supreme court?
▶ 1:55:53Hon. Barrett: That is already covered. It's already covered. There is a prohibition on using information that you know through the courts to make financial gain.
▶ 1:56:07Hon. Kagan: Not just for justices but for employees of the court.
▶ 1:56:12Hon. Barrett: The current language of the rules -- Sen.
▶ 1:56:16Van Hollen: The current language of the rules already prohibits members of the court staff and members of the court itself from engaging in prediction markets?
▶ 1:56:24Hon. Kagan: If your charges to go back and look for any new polls, we will willingly take them on.
▶ 1:56:32Hon. Barrett: We don't want loopholes.
▶ 1:56:35Hon. Kagan: This is super important.
▶ 1:56:40Sen. Van Hollen: Legislation has been introduced in the house. The current language may not be airtight. If you could go back and look at it, I would appreciate it. In terms of the shadow docket, I followed some of your testimony in the house side. Some improvements have been made. It remains the fact that during the last session of the court, more decisions were made on the so-called shadow docket then through the normal process.
▶ 1:57:09Sen. Van Hollen: I think they are big issues here I am wondering about the presidential weight of a decision on the rocket docket. Just in the last couple days, we have seen two people killed by ice agents.
▶ 1:57:34Sen. Van Hollen: One in texas, one in maine, in shootings, these are people who they are trying to apprehend for being here. I see that ice just halted most traffic stop arrests in the wake of these fatal shootings and that is today's news. I'm glad to hear that. I do recall one of the cases decided on the so-called shadow docket, that is what it is known as.
▶ 1:58:03Sen. Van Hollen: I guess my question to you is when the supreme court makes a decision in the normal course, it is binding precedent. What is the nature of the precedent or the weight that lower courts should give to a shadow docket decision?
▶ 1:58:23Hon. Kagan: This is a complicated question and I think you put your finger on something real here, that there are conflicting statements in our own precedent as to what exactly it is. At most, it is, you know, usually when we decide cases on the shadow docket, we are talking about the likely prospects of success, not that something will succeed, but that a claim is likely to succeed.
▶ 1:58:50Hon. Kagan: So how one takes a ruling like that and converts it into binding precedent is I think a complicated question and I think the court itself has been a little bit mixed mind on that question. And so I think it's a completely fair inquiry and one that we need to keep thinking about and keep on top of.
▶ 1:59:20Sen. Van Hollen: If I can just follow up, so in a normal case, you make a decision in the supreme court as to whether or not to do it or not and when you deny it, you don't issue an opinion. There is an implication I thought from some of your testimony earlier that you are somehow required to take up a case on the shadow docket because it's more of an emergency nature and there a requirement you take it up.
▶ 1:59:48Hon. Barrett: It's not that we are required to grant relief but there are motions filed so every motion has to be either granted or denied so we do not have discretion to just take a pass and say we are not going to act on it.
▶ 2:00:04Sen. Van Hollen: In some sense, you're making a decision on the merits. When you grant these shadow docket motions, aren't you may be creating an incentive for more people to file those motions? Because as I said, you have now got a situation where you are rendering more decisions through that shadow docket process.
▶ 2:00:33Sen. Van Hollen: It's almost as if you are saying there's automatic -- in the sense that you have to make a decision and I would argue that denying cert is a decision, too. Someone is looking for relief and the supreme court is denying it so when you are taking up these shadow docket cases, you are making the decision to both take it up and at the same time, deny grant relief.
▶ 2:01:01Hon. Kagan: I mean, I think every cert petition will deny it or will grant it so we make a decision either way. Every application for emergency relief, we either deny it or we grant it. We make a decision either way and we have to do that. You cannot just put in the box and say we are just going to ignore that.
▶ 2:01:22Hon. Kagan: I think, and I am not sure where the number comes from that we make more decisions on the shadow docket than we do ordinarily because some of those are probably just ones that came here and we looked at them and said we have no interest in doing this on the emergency docket. Goodbye.
▶ 2:01:40Hon. Kagan: If that is being counted as part of what you are talking about, you know, well, we are just denying it but I do think -- I mean, I think the part of your question that I think is a fair criticism is to ask why it is that we are facing so many more of these petitions.
▶ 2:02:01Hon. Kagan: I think partly it's the nature of governmental action and how governmental action has changed and what kind of challenges governmental action prompts, provokes, but I think partly, we have granted a number of these so people know it is available relief on the emergency docket 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?
▶ 2:02:33Hon. Kagan: So the greater percentage of these that we grant, the more likely it is people will just think of this as part of the normal process of litigating. File an emergency motion. That is very different from what it was when I joined the court 15 years ago.
▶ 2:02:50Sen. Van Hollen: If you could look at that, I would like to keep in touch on that. That is my concern and also part of my question about what is the value? If you have an incentive for more people to file these cases and at least until final decision to surrender may be years down the line, people are going to look at this shadow docket decision as something that has influence and wait, whether they should or not, we will have to figure out but I do worry because it creates this
▶ 2:03:21Sen. Van Hollen: Zone of uncertainty and I also think it undermines confidence in the system. Thank you.
▶ 2:03:27Sen. Van Hollen: I would like to thank the justices for being here today. We appreciate your time and attention. I remind all of our members we have one week to submit any questions for the record and I would ask the justices if you might to respond as quickly as possible to those questions as they come. With that, this committee meeting is adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap.org]