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Merrick Garland Asks Federal Marshals to Help Protect Supreme Court Justices as Governors Rail Against ‘Threatening’ Protests

Attorney General Merrick Garland appears at an August 5, 2021 news conference in Washington, D.C.

Attorney General Merrick Garland appears at an August 5, 2021 news conference in Washington, D.C. (Photo by Kevin Dietsch/Getty Images.)

Attorney General Merrick Garland on Wednesday “directed” federal law enforcement officers to “provide additional support” to security efforts involving the U.S. Supreme Court — but a message from the Justice Department didn’t explicitly state that the officers would directly be involved with security efforts around the justices’ homes.

Protests have occurred in front of the personal residences of Justices Samuel Alito, Brett KavanaughClarence ThomasNeil Gorsuch, and Amy Coney Barrett in the days since Politico published a leaked draft opinion which would overrule Roe v. Wade and therefore to allow states to criminalize abortion practices as they see fit.

U.S. Department of Justice Spokesperson Anthony Coley released the following on Wednesday:

Attorney General Garland continues to be briefed on security matters related to the Supreme Court and Supreme Court Justices. The Attorney General directed the U.S. Marshals Service to help ensure the Justices’ safety by providing additional support to the Marshal of the Supreme Court and Supreme Court Police.

Some have noted that the statement did not call for the protests to end.

The governors of Virginia and Maryland also requested additional security for the justices.

Virginia Gov. Glenn Youngkin, a Republican, wrote Wednesday to local leaders to request an “expanded security perimeter around the homes of the three current Justices Supreme Court Justices [error in original] who reside in Fairfax County.”

Abortion rights advocates stage a protest outside the home of U.S. Associate Supreme Court Justice Brett Kavanaugh on May 11, 2022 in Chevy Chase, Maryland. (Photo by Kevin Dietsch/Getty Images.)

Abortion rights advocates stage a protest outside the home of U.S. Associate Supreme Court Justice Brett Kavanaugh on May 11, 2022 in Chevy Chase, Maryland. (Photo by Kevin Dietsch/Getty Images.)

“This request is based on credible and specific information received about upcoming activities planned at or involving the homes of the Justices in Fairfax County,” Youngkin’s letter continued. “We believe for the safety of the Justices and their families, their neighbors, and the law enforcement heroes dedicated to preserving peace and order in our communities, that an expanded security perimeter should be established. Establishing a perimeter will ensure both the safety of the Justices, their neighbors and the demonstrators.”

“In addition to my clear safety concerns, I fundamentally believe such demonstrations and picketing should not be allowed at the Justice’s [sic] homes as they are meant to intimidate and influence the Justices, not to mention, scaring their families and small children,” the governor also wrote.

Maryland Gov. Larry Hogan, also a Republican, and Youngkin both wrote to Garland to take more direct action.

“It is in your hands to ensure that applicable federal law is enforced to preserve the integrity of our American judicial system and the safety of our citizens,” Hogan and Youngkin said in a joint letter.

The governors said the demonstrators used “threatening language” in interviews with ABC News. The verbiage attributed to the picketers included beliefs that Alito’s “intrusion into our rights deserves some intrusion into his peace and comfort.”

“If you take away our choices, we will riot,” one protester was quoted as saying, according to the letter.

The letter attributes the interviews to an “ABC News” report, but the concomitant footnote in the letter actually directs the reader to a story by WUSA, which is an affiliate of an entirely different network (CBS). Despite that factual error, the WUSA report does contain the cited quotes.

Law&Crime previously surveyed the statutes and federal cases at play. A frequently referenced federal criminal statute, 18 U.S.C. § 1507, forbids “picket[ing] or parad[ing] in or near . . . a . . . residence occupied or used by [a] judge” if the activity is undertaken “with the intent of influencing any judge.” The U.S. Supreme Court has spoken favorably of such statutes and has upheld the constitutionality of their analogues among the states.  In Cox v. Louisiana (1965), sometimes known as Cox II because the same exact plaintiffs and defendants were involved in another matter, the Court held that such statutes were constitutional despite their heavy restrictions on the rights of speech and protest — both of which are encapsulated by the First Amendment — because of a constitutional collision with the Due Process Clause.  In other words, First Amendment protests must take a back seat to the due process rights of litigants whose cases and controversies are before the courts.

“There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process,” the Cox II court rationed.

But subsequent decisions involving different statutes, such as Frisby v. Schultz (1988), have noted that protests which simply walk past houses likely pass constitutional muster. Frisby draws the line when protests target a specific house — not when protests are simply passing by or through a particular area.

“Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood,” said the Frisby court.  “General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance.”

Because the ordinance was narrowly drawn on those parameters, it was constitutional. Ironically, Frisby held that a Wisconsin ordinance which banned picketing that targeted a specific residence could be applied against a pro-life mob that had assembled at the home of a purported abortion doctor.

Frisby’s more permissive approach toward protests in residential neighborhoods might not square completely with Cox II, since the latter dealt with protesting judicial functions, and the former dealt with protests in general. The court in Cox II signaled strong approval for additional prescriptions on protests which target judicial functions.

White House Press Secretary Jen Psaki highlighted the tension between the constitutional provisions in a recent tweet.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.