The US Supreme Court has an image problem right now. Last summer, the court’s approval rating dipped below 40% for the first time. Since then, it has climbed slightly, to 42% — but it’s still well below the 60% or so that was typical in the early 2000s.
There’s a big partisan gap in the court’s approval rating. Democrats are especially unhappy with the court — and some of their candidates are even campaigning on the issue.
It’s possible, however, that the court’s unpopularity is partly — or even primarily — an optics problem. According to professors such as Jack Goldsmith and Will Baude, who aren’t shy about criticizing President Donald Trump, the court — including its three Trump appointees — has demonstrated an impressive amount of independence from the Trump administration. Noting how the justices ruled against Trump in major cases involving tariffs, birthright citizenship, and the Federal Reserve, Goldsmith dubbed the institution the “powerful, resilient, independent Supreme Court.”
So what can the court do to address its image problem? With all due respect to Chief Justice John Roberts — who usually assumes the role of statesman and spokesperson, especially in his year-end reports on the federal judiciary — the court needs new “faces” for its “brand.” And I hereby nominate Justices Elena Kagan and Amy Coney Barrett.
On Tuesday, Kagan and Barrett testified before panels of the House and Senate Appropriations Committees. It was the first appearance by Supreme Court justices before Congress in seven years. But given that the two justices hit it out of the park, hopefully such testimony will become an annual tradition, as it used to be.
The official reason for the justices’ appearance was to explain and advocate for the court’s $228 million budget request, including $14.6 million for hiring additional agents to protect the justices amid growing threats aimed at the judiciary. But the lawmakers ventured beyond the topic at hand, posing questions about controversial topics such as the court’s emergency docket, public reputation, and ethics code — which Kagan and Barrett answered with alacrity and adroitness.
Both the House and Senate hearings got off on the right foot when Kagan opened with a heartfelt tribute to the late Sen. Lindsey Graham (R-S.C.), who died unexpectedly over the weekend. That set a personal tone for the proceedings — a helpful reminder that the subject of security for the justices involves the safety of real people and their families.
It was reinforced when Barrett, early in her testimony, recounted a recent swatting incident at her home, as well as having to explain the bulletproof vest she received at work to her 12-year-old son. “I didn’t expect that performing this service was going to put me in the position of explaining to my children what a bulletproof vest was and why I had to wear one,” she said.
Kagan and Barrett presented a unified front on security. But they parted ways on other topics in their testimony, including whether the Supreme Court’s code of conduct should have an enforcement mechanism. Kagan reiterated her support for having the chief justice appoint a committee of lower-court judges to enforce the code; Barrett described her own position as “less certain,” in light of the complexities involved.
But even when they disagreed, the justices did so in a constructive and collegial fashion. As Barrett said near the end of her House testimony, “We work hard to disagree well, when we disagree — and we agree a lot of the time. And I think that kind of constructive engagement — not just throwing your hands up and saying, ‘I’m not going to deal with people with whom I disagree’ — is what we need to move forward.”
And you know what else would be helpful moving forward? More regular congressional testimony from members of the Supreme Court.
Because justices hadn’t appeared before Congress since 2019, the prospect of their doing so this year was “treated as something of a novelty,” as Georgetown Law professor Steve Vladeck wrote. “But for most of the Supreme Court’s modern history, it was anything but,” he explained — with justices “regularly trekk[ing] across First Street to testify before Congress” on a wide range of subjects.
That was a good thing, in Vladeck’s view — and in mine — because it “created a setting in which justices could be asked difficult questions,” showing their “willingness to engage with the political branches on terms beyond the court’s own choosing.” By contrast, when the justices shun appearing before Congress, it does a disservice to our democracy, which requires healthy engagement between the three branches of government.
If the court does decide to send its members to Capitol Hill more regularly, as it did on an annual basis from 1960 through 2011, it should stick with Kagan and Barrett. Their appearance this week demonstrated that they are superb ambassadors for the court — especially as a team.
First, as former professors, they excel at explaining the court’s complex work, including to people who might not have much legal knowledge — with legislators and journalists replacing 1Ls as the audience. Second, they’re funny and charming, blessed with high EQ, people skills, and patience — perhaps honed while serving as dean of Harvard Law School (Kagan) or parenting seven children (Barrett).
Third, because they come from opposite wings of the court — Kagan was appointed by Barack Obama in 2010, while Barrett was appointed by Trump in 2020 — they can appeal to both sides of the aisle when testifying before Congress. And they can show, as they did on Tuesday, that it’s possible to disagree without being disagreeable (and it probably helps that they sit at the ideological center of the court).
Separation-of-powers concerns could arise if Supreme Court justices, while “singing for their supper” on Capitol Hill, wind up pandering to legislators or opining on substantive legal issues. But Kagan and Barrett came nowhere close to that in their testimony — and they are, as two of the most judicious of the justices, especially well situated to avoid impropriety.
Yes, the separation of powers is critically important, and so is judicial independence. But judicial independence isn’t the same as judicial isolation. When the justices emerge from their marble palace to engage with the American people and their elected representatives, good things can happen.
David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”
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