U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer told a House appropriations subcommittee March 14 that budget cuts triggered by sequestration could hamper the high court’s work over time — but will hit lower federal courts more severely.
"For a few months we can get by with furloughs or shorter hours," said Kennedy as he presented the court’s $86.5 million budget to the subcommittee on financial services and general government. "In the long term it will be inconsistent" with the judiciary’s responsibilities as a co-equal branch of government.
Asked if the court could consider fewer cases to save money, Kennedy reminded committee members, "We don’t control our workload." The court has "no choice" but to consider all of the nearly 9,000 petitions placed before it each year, Kennedy added.
The court’s proposed budget reflects a small increase triggered by ongoing renovation and repair work on the court’s building, but also a 3 percent cut in spending for court operations. The hearing is an unusual annual ritual (though scheduling problems canceled it last year) that brings the judiciary and Congress together for a rare dialogue. "We are good stewards" of tax dollars, Kennedy said of the court and the judiciary in general.
But Kennedy and Breyer said budget cuts could have a serious impact on the lower federal courts and in particular federal defender programs that could endanger the rule of law by closing courts and delaying trials. "Historically, the first things that are cut are pretrial sentencing and probation officers … and public defenders," Kennedy said. "This is serious business."
Cutting public defenders, Breyer said, would end up increasing costs to the taxpayer because, simply put, "you will get the wrong person convicted." That will lead to litigation over innocence or the competence of the lawyer, Breyer said, producing costs that would exceed the expense of giving the defendant "a good lawyer in the first place." Both Kennedy and Breyer said the impact of sequestration on the rest of the judiciary will be spelled out in more detail in future hearings on the budget of the Administrative Office of the U.S. Courts.
As is often the case, the hearing did not focus solely on budget issues, and committee members used the opportunity in different ways. U.S. Representative Mike Quigley, D-Ill., raised the perennial issue of cameras in the Supreme Court, telling the justices, "There is beauty to the system … and I would like my kids to watch it."
Both justices acknowledged the potential educational value of televising high-court proceedings, but both stood their ground in opposition nonetheless. "We are a teaching institution," Kennedy said. "We teach by not having television. We are judged by what we write." He said he worried about the "insidious dynamic" of fellow justices asking certain questions because the cameras are watching.
Interestingly, Kennedy gave a new reason why camera access could be more justified in lower courts — namely, the problem of budget-strapped newspapers laying off "experienced reporters" who cover the courts. "This is a real check" on how those courts operate, said Kennedy, and without journalists present, cameras could be an important substitute in the interest of accountability.
For his part, Breyer said that he would probably not change his behavior at first if cameras were in the Supreme Court. He said he sometimes gets so wrapped up in a question that he is thinking only of getting an answer from the lawyer before him. "I don’t care if I look a little bit stupid," he said. But Breyer told the committee that he has been warned privately by others that the first time camera coverage results in one of his questions or comments being distorted on television, "the next day you will watch what you say."
Representative Jose Serrano, D-N.Y., asked his annual question about the extent to which the court is trying to recruit minority members to become Supreme Court law clerks, now 15 years after news reports revealed the dearth of minority clerks. Kennedy sidestepped the question entirely, but Breyer said, "I haven’t had to look as hard" for minority candidates for clerkships as in earlier years. But he seemed to suggest that the clerk pipeline still does not produce enough minorities: "It still does require something of an effort."
Another perennial question from the Puerto Rico-born Serrano was aimed at teasing out an opinion from the justices as to whether someone born in Puerto Rico could become president of the United States. Breyer seemed to be answering when he said that when he asks himself "why not," he hears nothing. Serrano responded excitedly, "You’ve just made the front pages on the island," which prompted Breyer to backtrack. "I have not given an answer," Breyer said.
Less than two weeks before the court hears two landmark cases on same-sex marriage, Representative Nita Lowey, D-N.Y., even used the hearing to tell the justices her own views in favor of giving equal legal recognition to same-sex couples. The justices, probably unaccustomed to such direct off-the-bench appeals in a pending case, did not respond.
Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, a Legal affiliate based in New York. This article first appeared on The BLT: The Blog of Legal Times.