At Hearing with Justices Kagan and Barrett, Murray Presses Need for an Enforceable Code of Conduct and Transparency from SCOTUS

***WATCH: Senator Murray's full questioning***

Washington, D.C. - Today-at a Senate Appropriations Financial Services and General Government (FSGG) Subcommittee hearing on the FY27 budget request for the United States Supreme Court-U.S. Senator Patty Murray (D-WA), Vice Chair of the Senate Appropriations Committee, questioned Associate Justices Elena Kagan and Amy Coney Barrett on the Court's security funding request, lack of an enforceable code of ethics, and the need for more transparency, particularly with the Court's increased reliance on the Shadow Docket.

In opening comments, Senator Murray said:

"Justice Barrett, Justice Kagan: thank you both 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 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.

"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.

"It is also unbelievably important to the functioning of our democracy that we have a well-functioning, independent judiciary that is 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 in what is behind those decisions. So, I urge you to keep these issues in mind."

[SHADOW DOCKET]

Senator Murray began by offering the justices an opportunity to respond to her concerns about the Court's reliance on the Shadow Docket.

MURRAY: If either of you have any comments on that, particularly on the shadow [docket], I would appreciate it.

KAGAN: There are many facets to the shadow docket, and we discuss them and debate them, and sometimes disagree about them. In recent years, we have increasingly received these requests to move fast, and to move before a case winds its way through all the levels of review, and 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; sometimes Justice Barrett and I have agreed, sometimes Justice Barrett and I have disagreed. I think that 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 arguments, have more briefing, make sure to explain ourselves in our decisions more than we did maybe a year, or 18 months ago, when we first started being swamped with these applications. I think we can still improve what we're doing. I think you're exactly right that transparency is important. People need to know-lower court judges need to know, litigants need to know, the public needs to know-what it is that we're deciding and why. There are occasions where emergency relief is absolutely appropriate, and it's finding those occasions, but no others, that is the challenge of this.

MURRAY: I appreciate that response, [Justice Barrett] don't know if you have anything to add?

BARRETT: I'll just add one thing. I think one of the challenges as we're trying to adapt and respond to the number and character of applications that we receive is, I think one of the challenges is on our merits docket, we have a very well-established process for handling cases, and each case is treated the exact same way. The same deadlines, the same briefing limits, oral argument, etc. And as Justice Kagan alluded to, it's a little bit different with these emergency applications because I don't think any of us takes the position that we should have an opinion written for every one of them or oral argument for every one of them. So, it's not quite the same one-size-fits-all process on the emergency docket that we have on the merits docket. And so I think what we're working on now is figuring out which ones do warrant that more process-the oral argument, more briefing-and which ones should be handled in house. Which ones warrant more explanation? Which ones really should be just in order? I think that has been something that we're just working through.

MURRAY: Well, I encourage you strongly to work through that and make it clear. I think, 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 that I think everybody would support you on. Thank you.

[SECURITY FUNDING]

Senator Murray then questioned the justices on the Court's requests for additional security funding at various points throughout the FY26 appropriations cycle and emphasized the importance of transparency on how American's tax dollars are being spent.

MURRAY: Now on your budget request, this Committee does take security threats facing the Supreme Court-and everyone who has signed up to serve the public-extremely seriously. That's exactly why Congress provided $58 million in additional security funding in FY26 to address some of these increased threats and vulnerabilities. Unfortunately, however, 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 $28 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?

BARRETT: Absolutely. We want to be transparent, and Justice Kagan has apologized to Ranking Member Reed on the court's behalf if we did anything that was suboptimal in our seeking of those funds. We made those requests in response to unexpected needs-we didn't expect the marshals to drop residential security as quickly as they did, and they told us that they were going to end it six months before we anticipated it. 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, but absolutely we want to cooperate, and we recognize your important role.

MURRAY: I think that's really important for you to understand and make sure that we have that documentation. Our constituents require us to be very transparent about where their tax dollars are going, so we need that budget information from you.

And we want to make sure the court has first-rate security, but we do have very little information about how you are actually building this type of security capacity that you need. So, 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? And secondly, what expertise are you relying on to make sure your security personnel have the facilities and the training and the capacity they need?

KAGAN: We have a goal of 477 police officers. We're a ways away from that right now. If we include people we get through contracting, we can probably do it within a couple of years, but in order to have our own employees get up to that mark, then we're probably talking more like six years, you know, into the 2030s. As to what kind of training is being used, I think we're going to have to get-unless Justice Barrett knows more than I do-I think we're going to have to provide you with further information about that. I'm confident that the kind of training programs that we've put in place are good ones, but I can't give you a whole lot of detail about that.

MURRAY: Okay, that is something that we need to have in order to provide the budget for you. So we'd appreciate that back.

[ENFORCEABLE CODE OF ETHICS]

Senator Murray then noted the Court should adhere to the same standards that other courts across the country do. Senator Murray supports legislation to establish in law a strong and enforceable Code of Conduct for the Supreme Court.

MURRAY: And finally, I just have a few seconds left. I heard Senator Coons when I came in talk about 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 than one all the lower courts have been held to. 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've been asked at this both in the House and a number of people here 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 and 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.

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