Article I of the Constitution provides Congress the “power of the purse.” With it, Congress has broad appropriations power to control the spending of other branches of the federal government, including the many agencies and departments of the Executive Branch and the federal judiciary.

Compared to the Executive Branch, the judiciary’s budget is microscopic. The entire judiciary is only 0.2% of the entire federal budget. The Supreme Court is only 1% of that small piece.

Last week, Justices Samuel Alito and Elena Kagan appeared before the House Appropriations Subcommittee on Financial Services and General Government to discuss the Supreme Court’s budget for the next fiscal year. It was a rare opportunity for the subcommittee, as it was the first time since 2015 that Supreme Court justices have publically appeared before the subcommittee to discuss the Court’s budget request.

The hearing also set the stage for the legislative and judicial branches to talk directly to one another. Because of this unique occasion, past subcommittee members have used some of their time to ask questions about the judiciary at large or Court practices unrelated to appropriations. Last week’s hearing was no different.

Subcommittee Chairman Mike Quigley, D-Ill., began the hearing by announcing his intent to hold similar hearings more often in the future. He noted that such hearings were a way for the public to hear more directly from the justices and “exchange ideas” on how to improve the federal judiciary.

Rep. Quigley seemed satisfied with the Court’s budget request, lauding its “dedication to cost containment.” With that, he quickly turned to an issue that would dominate the hearing: Court transparency. Rep. Quigley pressed the justices to consider having cameras in the court, arguing that major cases like Brown v. Board of Education and Bush v. Gore have shaped our society but, because of current practices, there is no video of these decisions. He also noted that few members of the public have the ability attend arguments in person and video could serve as an educational tool, as many Americans “have no idea how Supreme Court proceedings even work.”

Both Justices Alito and Kagan, however, were hesitant to endorse having cameras in the Court. Justice Alito conceded that “most people” believe hearings should be televised. He joked that even most of his family agreed. His concern, though, was that televised arguments would “undermine their value to [the Court] as a step in the decision-making process.” He explained that advocates would find it “irresistible” to use catchy soundbites, with the hope that it be rebroadcasted later on cable news.

Justice Kagan had similar concerns. She added that cameras could also unintentionally prevent justices from asking difficult questions or engaging in hypotheticals. She explained, for instance, that her style during arguments is to play devil’s advocate and challenge lawyers by asking difficult questions. Cameras, she feared, would misinterpret this approach and make it seem like she had an opinion she does not.

After Chairman Quigley, Rep. David Joyce, R-Oh., discussed another aspect of judicial transparency — court records. He applauded the Court for making its filings freely available on its website. He noted, however, that lower courts use another online system—known as PACER—where the vast majority of filings fall behind a paywall. In addressing their own system, both Justices Alito and Kagan agreed that having the Court’s filings available free of charge had made a positive difference for people who practice before the Court and are interested in the Court’s work.

Rep. Joyce next asked the justices to talk about the justices’ collegiality in wake of the public often only hearing about the Court’s most contentious 5-4 decisions. Justice Kagan responded that Rep. Joyce “put [his] finger on something” that the Court finds frustrating. She explained:

“[The Court is] a very collegial institution and we like each other quite a lot. And I think people think of the 5-4 decisions as the only thing we do. In fact, Justice Alito and I agree with each other far more often than we disagree with each other.

And, you know, of course there are going to be cases on which [we have] different views about how to do law, how to interpret the Constitution …. But, you know, 40, 50% of the time, we’re unanimous, which is sort of an amazing thing, given that we only take the hardest cases, cases on which there are splits in the courts below and another 30 or 35% of the time we’re split in all kinds of random and different ways.

So I think it is one of the things that we would like to make clear to people is how much of what we do does not follow this stereotype of the perpetually divided Court.”

From there, other subcommittee members addressed a myriad of other topics concerning the Court, including Court security, how justices choose which cases to hear, law clerk diversity, an ethics code for Supreme Court justices, workplace conduct rules, the impact of nationwide injunctions, online financial disclosures, and whether the last government shutdown affected the Court’s work.

The entire hearing can be viewed online here.

Image credit: Dan Thornberg

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