Cuts to court system 'simply unsustainable,' Justice Kennedy warns

The cuts to the court system from sequestration are “simply unsustainable,” Justice Anthony Kennedy warned Thursday.

The judicial branch is subject to a 5 percent cut under sequestration. The Supreme Court and lower courts throughout the country wouldn't be able to carry out their duties if those cuts stay in place for more than a few months, Kennedy said.

"If it's for any long term, it will be inconsistent with the constitutional obligation of the Congress to fund the courts," Kennedy said.

Kennedy and Justice Stephen Breyer testified before Congress Thursday in defense of the court's budget request, noting that it has actually asked lawmakers to reduce its funding in recent years.

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"We can, for a few months ... get by with some temporary furloughs or shorter workdays for our staff," Kennedy said of the sequester. But long-term, "it is simply unsustainable."

Kennedy said it's possible that sustained budget cuts could eventually interfere with basic legal protections, such as the right to a speedy trial and the right to an attorney.

"Yes, trials would be delayed," he said, in response to a hypothetical question from Rep. Nita Lowey (D-N.Y.) "Yes, bankruptcies would be delayed."

Breyer said cuts to public-defender programs could ultimately cost the government money, if the courts are later saddled with appeals based on a claim of inadequate representation.

The Supreme Court itself, they said, can't cut its spending in the same way as other agencies.

"We do not control our workload," Kennedy said. He noted that the court receives about 9,000 appeals each year, and doesn't have the option of simply ignoring some of them. And Breyer said the court has already streamlined its administrative costs.

Kennedy and Breyer also fielded questions from lawmakers about televising the court's oral arguments. They both said they would be uncomfortable allowing cameras into the court.

"There would be considerable reluctance to introduce a dynamic where I would have the instinct that one of my colleagues asked a question because we're on television," Kennedy said. "I just don't want that insidious dynamic to intervene between me and my colleagues."

Breyer said he's concerned that justices would be afraid of looking silly or being taken out of context, and therefore wouldn't pursue certain lines of questioning.

"I'm not ready yet," he said. "I want to see a little bit more of how this works in practice."

The court releases transcripts and audio recordings of its oral arguments, but has resisted calls for televised arguments.

The justices have said the important part of their work is the opinions, where they make actual rulings and explain their reasoning. Because the opinions are public, they argue, the court's real work is sufficiently transparent.