Justices Kennedy and Breyer Testify at House Appropriations Hearing

April 14, 2011 -- Justices Anthony Kennedy and Stephen Breyer appeared before Congress today to discuss the Supreme Court's proposed 2012 budget in a hearing that touched upon serious economic issues but also strayed into the justices' use of social media, the code of judicial conduct and whether the Court was correct to close its front doors to entering tourists.

In his opening statement to the House Appropriations Subcommittee -- which is charged with reviewing the court's budget -- Kennedy said the court recognized that the government "must be extremely careful in terms of its stewardship of the taxpayers' dollars" but that the court's budget request included cost-containment measures.

Subcommittee members, at times, seemed more intrigued by the workings of the Court.

"Do you tweet?" asked Rep. Steve Womack, R-Ark.

Kennedy dodged the question, but praised social media for bringing greater interest to public affairs.

"The law lives in the consciousness of the people, and to the extent there is greater interest, and greater interest in public affairs and that finds its way into the social media, I think that is all for the good."

But Justice Breyer dug right in. He said he had followed the recent Iranian uprising by monitoring a Twitter feed.

"The only way you could do it," the justice said, "was to go through the Tweet or the tweeter."

But he added that he doesn't allow himself to have Twitter or Facebook followers.

"It's not a good idea on balance," he said to laughter. "Judges wear black robes so that they will resist the temptation to publicize themselves, because we really speak for the law and that is to be anonymous."

The justices also were asked about the decision to close the court's front doors to entering tourists.

Kennedy said that the court recently "spent millions of dollars on an updated security facility," but decided, after talking to experts, that visitors no longer should be able to enter through the main front entrance. While visitors can leave the court through the front of the building, they are required to enter through side doors equipped with security checkpoints.

Kennedy said that, from a security perspective, entering from the side entrance is "mandatory."

But Breyer disagreed. He reiterated his position that it had been a "close and difficult question," but that the majority of the court made the wrong decision in closing the main entrance, which stands below an inscription that reads, "Equal justice under law."

"They should have left it open," he said. "I read the same [security advisories]."

Breyer said he hoped that, eventually, "things will calm down," and the front doors will be open as an entrance for every visitor.

Members of the committee were concerned whether the court felt the budget contained enough funds for security.

Kennedy said he thought it did and discussed the recent shooting of Chief Judge John Roll in Arizona, saying, "We are always aware of security threats."

Asked about provisions of the budget that included technology expenditures, Kennedy talked about the "quiet revolution" that has occurred with the advancement of technology. He noted -- in awe -- that the court has a new website that gets 59 million hits a month and that opinions now are posted and analyzed on blogs hours after they have been released.

"It makes our courts efficient and effective," he said.

Rep. Jose Serrano, D-N.Y., asked whether the code of judicial conduct -- a set of ethical principles adopted by the Judicial Conference -- should be binding to Supreme Court justices. Currently, the code only applies to lower court judges, although Supreme Court justices often follow the guidelines.

Kennedy said he did not feel the code should be binding.

"There's a legal or constitutional dissonance or problem," he said, noting that the rules are made by district and appellate court justices. "We would find it structurally unprecedented for district or appellate court judges to make rules that the Supreme Court would follow."

Justice Breyer said, "We do follow the rules and they do apply," but he added that, unlike in the lower courts, if a Supreme Court justice recuses himself from a case his vote cannot be replaced.

"It's a different thing ... being a Supreme Court justice," he said. "You have a duty to sit because there is no one to replace me if I take myself out, and that could sometimes change the result."

Kennedy added that if the court deadlocks 4-4 on an issue, the lower court ruling stands.

"If we have one of us recused from a case and we come out 4-4," he said, "we've wasted everyone's time."