Republicans want Supreme Court demonstrators arrested. Is that legal?

The Justice Department has not yet signaled that it will be pursuing legal action against any of the protesters

By Jon Skolnik

Staff Writer

Published May 14, 2022 6:00AM (EDT)

Sen. Tom Cotton (R-AR) | Abortion-rights advocates mach in the street to stage a protest outside the house of Supreme Court Associate Justice Samuel Alito in the Fort Hunt neighborhood on Monday, May 9, 2022 in Alexandria, VA. (Photo illustration by Salon/Getty Images)
Sen. Tom Cotton (R-AR) | Abortion-rights advocates mach in the street to stage a protest outside the house of Supreme Court Associate Justice Samuel Alito in the Fort Hunt neighborhood on Monday, May 9, 2022 in Alexandria, VA. (Photo illustration by Salon/Getty Images)

Hundreds of pro-choice demonstrators have gathered outside the homes of conservative Supreme Court Justices Samuel Alito, Brett Kavanaugh, and John Roberts since a draft decision reversing Roe v. Wade, the landmark 1973 decision affirming America's constitutional right to abortion, leaked. The protests – featuring signs, chants, and candle-lit vigils – have remained peaceful demonstrations. But while no threats or acts of violence have been reported in connection to these demonstrations, Republicans are already tarring them as immoral, illegal, and even terroristic, going so far as to call on the Justice Department to prosecute individuals. 

On Wednesday, Sen. Tom Cotton, R-Ark., said that the protesters "should be arrested for protesting in the homes of judges, jurors and prosecutors."

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"There is a federal law that prohibits the protesting of judges' homes," Cotton told NBC News. "Anybody protesting a judge's home should be arrested on the spot by federal law enforcement. If [protesters] want to raise a First Amendment defense, they are free to do so."

"The President may choose to characterize protests, riots, and incitements of violence as mere passion," Sen. Chuck Grassley, R-Iowa, echoed in a Wednesday letter to Attorney General Merrick Garland. "But these attempts to influence and intimidate members of the federal judiciary are an affront to judicial independence."

The Republican governors of both Virginia and Maryland, where the three justices' homes are located, have also joined the chorus, urging Garland to "provide appropriate resources to safeguard the justices and enforce the law as it is written."

Even some Democrats came forward to condemn the demonstrations, including most notably Sen. Dick Durbin, D-Ill., who this week went so far as to call the protests "reprehensible."

"Stay away from the homes and families of elected officials and members of the court," Durbin told CNN. "You can express yourself, exercise your First Amendment rights, but to go after them at their homes, to do anything of a threatening nature, certainly anything violent, is absolutely reprehensible."

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To make their case, Republican pundits and politicians have for the most part hung their hat on an esoteric legal statute, first enacted in 1950, that makes it illegal to picket or parade "in or near a building or residence occupied or used by [a] judge, juror, witness, or court officer" with "the intent of influencing [that] judge." The statute, 18 U.S. Code § 1507, is seemingly designed to protect members of the judiciary from protests that might obstruct justice through fear or intimidation and was first enacted as part of the "Internal Security Act of 1950," a McCarthy-era law that sought to address fears that communism was creeping into the judiciary. 

Historically, the courts have hewed closely to laws that protect juries and justices from any outside political influences, as Law & Crime noted. Still, the legality of the protests remains something of an open question.

Alvin B. Tillery, Jr., an associate professor of political science at Northwestern University, told Salon that it's unlikely this week's demonstrations would be ruled illegal under 18 U.S. Code § 1507.

"I always have read [that statute] as 'impeding the officers ability to get to the court, or from the court to take part in proceedings' ... or terrorizing them with loudspeakers in front of their houses," he explained in an interview. "There's really no interpretation by which one could say that [the protests are] untoward or illegal in my understanding of the law and the Constitution and the history of protest in our country."

Anuj C. Desai, a professor of law at the University of Wisconsin, expressed a little more doubt, arguing that the statute could be applied. But still, he added, very little case law in the U.S. has actually ventured into the territory of the situation at hand.

"I think if [the protesters] did get prosecuted, there would be reasonable arguments about the interpretation of the statute that have not played out in the courts."

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One pertinent legal case, Desai said, is Cox v. Louisiana, a 1965 case in which the Supreme Court affirmed a state law that made picketing before a courthouse illegal. The case specifically centered on Benjamin Elton Cox, a civil rights activist who was convicted of disturbing the peace after organizing a thousands-strong march outside of a Baton Rouge courthouse. The facts around Cox v. Louisiana "were relatively sympathetic" for the protestors, DeSai said, "and the Supreme Court still said [Louisiana's statute] is carefully drawn." 

Another past case that stands out, as The Washington Post notes, is Frisby v. Schultz, which stems from a 1988 picket organized in Brookfield, Wisconsin by two anti-abortion activists outside the home of an abortion doctor. Both activists claimed that a town ordinance banning the demonstration violated their First Amendment rights. Citing "a special benefit of the privacy all citizens enjoy within their own walls," the Supreme Court ultimately upheld the ordinance, arguing goals of the protests could be achieved through other means of communication.

"I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected," wrote then-Justice John Paul Stevens, adding that there is "little justification for allowing them to remain in front of his home and repeat it over and over again simply to harm the doctor and his family."  

Apart from local ordinances, like Wisconsin's, a judge might also consider state codes. This strategy could prove especially successful in Virginia and Maryland, both of whose criminal statutes put a strong emphasis on the preservation of the home as a place of tranquility.

"The practice of picketing before or about residences and dwelling places causes emotional disturbance and distress to the occupants," states the Maryland criminal code. "The purpose of this practice is to harass the occupants of the residences and dwelling places."

Virginia statutory law imposes a similar restriction: "Any person who shall engage in picketing before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home, shall be guilty of a Class 3 misdemeanor."

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All a prosecutor would need to do, then, under Virginia or Maryland law is establish that the demonstrations disrupted the tranquility within Alito, Kavanaugh, or Roberts' homes.  

But if prosecutors were to argue that the demonstrations violated 18 U.S. Code § 1507, they would have to establish that the protesters intended to distress these three justices – a task which would likely require a lot of heavy lifting, suggested Sheila Bedi, a clinical professor of law at Northwestern University.

"A prosecutor could look at things like notices of the protest, if there's any social media posts, but again, I think it's highly unlikely that anybody out there protesting really believes that Justice Alito is going to change his opinion as a result of the protests. And because of that, I think anybody who was charged under the statute would have a strong defense," Bedi said. "I think the reality is that the movement has known that this was a possibility for a long time because of the organizing that happened on the right. And this is about harnessing the political moment far more than it is about trying to influence the judges."

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Desai likewise said that prosecutors would be bedeviled with "proof problems" relating to mens rea, or the state of mind protesters were in during the demonstrations. "This one just looks like it would be that aspect of it that would be hard to prove," Desai said. 

Thus far, the Justice Department has not signaled that it will be pursuing legal action against any of the demonstrators, and there have been no arrests at this point. Department spokesperson Anthony Coley on Wednesday said that the agency "continues to be briefed on security matters related to the Supreme Court and Supreme Court justices.

By Jon Skolnik

Jon Skolnik was a former staff writer at Salon.

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Abortion Explainer First Amendment Protests Reproductive Rights Roe V. Wade Scotus Supreme Court Tom Cotton