Is the Supreme Court's Police Department Unconstitutional? A Question Inspired by the Testimony of Justices Kagan and Barrett

Last week, Justices Barrett and Kagan appeared before a House appropriations subcommittee to explain the Supreme Court's request for a budget increase. As has been widely reported (e.g., here), the bulk of the requested increase is to address heightened security needs, as threats to Justices have increased in recent years. Both Justices Barrett and Kagan pointed to the Dobbs leak in 2022 as the point from which to measure the increase. Certainly there were security threats that one could specifically tie to that leak, most prominently the man who was arrested in June 2022 near Justice Kavanaugh's home with a gun, a knife, pepper spray, and burglars' tools.

Overall, however, I suspect that the threats being directed at the Justices are simply part of the larger trend of increased political violence more broadly. In general, that threat is greater from the right than from the left, although I don't know whether that's true with respect to threats directed specifically at the judiciary and Supreme Court justices. Needless to say (but I'll say it anyway), threats of harm to Justices and their families warrant condemnation, regardless of the ideology of the people making the threats or those at whom they are directed.

I now offer a few observations based on the hearing.

(1) Justice Kagan took the lead overall. Justice Barrett offered three stories from her own experience and that of her colleagues. First, she said she was at a loss how to explain to her twelve-year-old son why she needed a bullet-proof vest when one was issued to her. That does seem very rough, but I was actually more disturbed by the two other main stories she related. Justice Barrett mentioned that her home was SWATted, which is not merely a threat of violence but, given what has sometimes happened to others who have been SWATted, an actual attempt at violence. Justice Barrett also recounted that she and some of her colleagues sometimes receive unsought deliveries (presumably of things like pizzas) addressed to Daniel Salas. He was the son of Judge Esther Salas and was shot and killed by "a disgruntled lawyer posing as a delivery driver." There is no way to understand such acts except as a threat to murder a Justice's family members. What the hell is wrong with people?

(2) Some of the questions posed by the subcommittee members (especially the Democrats) had nothing to do with the Court's funding request. The topics that interested these members the most were the shadow docket and the possibility of stricter (or really any enforceable) ethics rules for the Justices, especially with respect to limits on gifts. Although I am sympathetic to the substantive positions taken by these subcommittee members, and the Justices tried to answer the questions, these lines of questioning fit very awkwardly into the hearing overall.

(3) Justice Kagan said that the bulk of the funding increase for security would go to paying to hire more Supreme Court Police. In response to a line of questioning about physical security measures at the courthouse, Justice Kagan said that she and her colleagues generally dislike fencing and other barriers that make it difficult for the public to gain access to the court because they want transparency. That struck me as at best ironic given how resistant the Court continues to be towards allowing cameras in the courtroom to livestream oral arguments. I say this less for me than for the general public. I'm very glad that the Court now livestreams the audio of its oral arguments. I don't need video because I recognize each Justice's voice and with audio-only I can listen while doing chores (or posting snark on BlueSky). But given the broader culture, video should also be streamed and available for the public generally.

(4) Justice Kagan explained repeatedly that the budget increase requested would be for the purpose of increasing the capacity of the Supreme Court Police because the Justices don't like having to rely on the U.S. Marshals Service, which is part of the Department of Justice. That got me wondering: Is the Supreme Court of the United States Police Department (SCUSPD), as it is officially known, unconstitutional following Trump v. Slaughter?

By law, SCUSPD officers can make arrests for violations of federal and state laws. That same law authorizes them to carry firearms. They thus appear to exercise pure executive power: law enforcement. Yet they are located within an agency, the SCUSPD, that is not headed by anyone who serves at the pleasure of the president. Rather, they answer to the Supreme Court Marshal, who, by law, is appointed by and removable by the Court.

Hold on. Doesn't the Court need its own police force?

That depends on what we mean by need. Justice Kagan and Congressman Steny Hoyer agreed that when one has a security detail, it's very helpful if the members of that detail develop a relationship with the person to be protected. Never having had (or needed) my own security detail, I take their word for that, but that seems an insufficient justification for locating the relevant personnel in the judicial branch. The same particular U.S. Marshals could be detailed to particular Supreme Court Justices even though those Marshals are within the executive branch.

The real reason for giving the Court control over its own police force is to ensure its judicial independence. Especially now, with a vindictive and petty president who has shown a willingness to withdraw protection from those he regards as his political foes, one can absolutely see the need for the  personal safety of the Justices and their families not to depend on the executive branch of government, with which the Court and individual Justices are sometimes at odds. Put differently, there is a principled reason for the SCUSPD to be independent of the executive branch.

But . . . wait for it . . . wait for it . . . there are also principled reasons for Congress to have structured other agencies as independent of the executive branch. The Merit Systems Protection Board, the Federal Election Commission, and various other agencies that Congress insulated from direct presidential control with good-cause removal protection were made that way because Congress valued some combination of subject-matter expertise and distance from direct political control. Yet that was not enough to preserve independent agencies in Slaughter.

Except for the Fed. In Trump v. Cook, the Court recognized that central bank independence is extremely valuable for averting economic ruin. However, perhaps in tacit acknowledgment that this sort of functional justification was at odds with its destruction of all other independent agencies, the Court ultimately preserved Fed independence as a "special arrangement sanctioned by history."

But here's the thing. No similar history justifies an independent SCUSPD. In the realm of judicial security, there is nothing remotely similar in the early republic to the First and Second Banks of the United States. The Supreme Court had no police force whatsoever in the early republic. It did not get a Marshal until 1867. That is exactly the same year in which Congress enacted the Tenure of Office Act, which the Court in Slaughter treated as the paradigmatic congressional overreach. Thus, an institution with a pedigree extending only as far back as 1867 cannot render the SCUSPD a special arrangement sanctioned by history.

Indeed, things look even worse, history-wise. The Marshal circa 1867 provided security in the sense of keeping order in the courtroom, but the Court did not get an actual police force until 1935, the very same year that the Court decided the Humphrey's Executor case that it overruled in Slaughter. Simply put, whatever history makes the Fed an exception to the rule of Slaughter does not apply to the SCUSPD.

So, is the SCUSPD unconstitutional? In light of Slaughter and Cook, the answer seems pretty clearly yes. However, the Justices seem to really like having their own police force. Thus, the smart money says the Court would find anyone challenging the SCUSPD's authority to lack standing or, in the event it could not duck the merits, that it will invent some new exception for . . .  uhm . . . reasons.