Justices Elena Kagan and Amy Coney Barrett made a rare appearance before congressional appropriators Tuesday as the Supreme Court seeks an increased security budget.
Court decisions were off limits during the Senate and House hearings, but the testimony still produced a few striking moments.
1) The Bizarre Power of Politeness Protects Trump From Accountability
It was surreal to sit through four hours of hearings on a “heightened threat environment” in which President Donald Trump was only sparingly mentioned. And when a Democrat would invoke Trump, the justices would backpedal onto safer terrain.
A typical episode:
Sen. Jack Reed (D-RI) (after reading a series of Trump’s insults of the justices): “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.”
Justice Elena Kagan: “Wherever these come from — 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.”
In her opening statement, she referred to the Jan. 6 insurrection obliquely as “events at the Capitol.”
Kagan, a member of a body still pretending to be nonpartisan, would never criticize Trump directly in this kind of setting. But the whole charade highlighted the internal social code that so baffles and infuriates Democratic voters. In a congressional hearing featuring the esteemed justices, members will be cordial and the justices cosseted. They’ll all pretend that the beefing up of judges’ security since 2016 is random, that a president who frequently attacks the justices in personal terms — something no president had ever done before — does not poison the general populace.
2) Dems Fixated on the Shadow Docket, Ethics Reform
Several Democrats questioned Kagan and Barrett on the shadow docket and the Court’s increased reliance on it.
The closest Kagan got to piercing the nonpartisan veil came in a quip about the flood of emergency petitions filed in the Trump era.
As to “why are all these people are coming to us when they didn’t in the past,” she said that it’s partly “because people see that there’s at least potential to grant relief, so why not file a petition?”
A large portion of the flood of emergency petitions comes from right-wing litigants attempting to leapfrog lower courts in search of a friendlier audience. And the Court has often rewarded that strategy, granting interim relief even if it ultimately decides against the right-wing argument.
Many Democratic members also pressed the justices on an enforcement mechanism for their ethics code. Kagan said that she still supports one; Barrett demurred, citing the difficulty in deciding who would adjudicate. It was strange to watch Kagan and Barrett field questions about the Court’s porous ethical boundaries and testify to the justices’ commitment to them given the breathtaking corruption of their colleagues Justices Clarence Thomas and, to a slightly lesser degree, Samuel Alito.
The hearings were conspicuously devoid of discussion of more serious Court reform, including expansion or judicial term limits.
3) Barrett Revealed a Particularly Gruesome Intimidation Tactic
While talking about the threats she’s faced, including a swatting attack in late May, Barrett said that many pizzas and packages sent to the justices’ homes bear the name “Daniel Anderl,” the son of federal Judge Esther Salas who was killed in 2020 by a self-described anti-feminist lawyer looking to kill his mother.
