Among the many reactions to the leaked Alito Dobbs draft are protests at the Supreme Court, for which fences have been erected out of concern that “mostly peaceful” protests are not peaceful protests. To the extent that people feel the need to protest, that’s their right within the parameters of expressive communication that doesn’t impair the functioning of the Court.
Whether it’s effective, beyond being cathartic for protesters, is another matter. People struggle with the notion that the Supreme Court was not crafted to be a democratic body, a political body, whose rulings reflect the will of the people. Indeed, it was crafted to be immune from political whims by giving justices life tenure so they need not fear a backlash from their rulings if the public disapproves.
This is what allowed the Supreme Court to decide Brown v. Board of Education as it did, but it cuts both ways. The justices know this. Lawyers, for the most part, know this. Yet, partisans and pundits are doing what they can to confuse the public’s grasp of the Supreme Court’s function by suggesting that there is something wrong about these “unelected” nine being so “powerful” while immune from democracy and transparency. There also includes the grievance of Merrick Garland’s and Amy Coney Barrett’s “stolen” seats, which only makes sense if one of the two seats was not stolen. But I digress.
That people may protest to express their disapproval of a decision, however, is not the same as what some are proposing be done now. There have been calls to protest at the homes of justices, to find them and their family members when they are in public and to not let them have a moment of peace. To some extent, this is pushed as a matter of “moral suasion,” to express to justices who are otherwise immune from electoral vicissitudes that the public is angry at their choice.
While this may not be how the Court works, that doesn’t mean people can’t believe it can and should work differently, with the justices aware of and influenced by popular political positions. To sharpen the point a bit, it’s in contrast to justices who appear dedicated to the pursuit of an unpopular political position. If insulating justices from politics is a virtue when their choices are neutral, is it wrong when a justice is not impartial, but dedicated to pursuing his ideology?
The other purpose to the push to harass justices in their homes, at their tables in restaurants, and anywhere else they can be found, is to punish them for making a decision that enraged the unduly passionate. When I raised the point that harassing justices will not only fail to persuade them to awaken, but could well make things worse, one of the more common reactions was “Be nice to your enemies or they might be even meaner!” or, in more official jargon:
“Be nice to your oppressors or they might oppress you.”
Forget that this misconstrues the message, as the unduly passionate are wont to do, and appreciate that the universe consists of good and evil, and if someone is evil (and oppressors are, by definition, evil), they must be stopped by any means possible. This could range from screaming in their face at a table in a restaurant to protesting at their home at 3 in the morning, perhaps hoping no one throws a rock (or worse) through a window, although spray painting an unpleasant word on their front door isn’t an issue because it’s not violence under the new paradigm and, well, they’re right and the justice is an oppressor.
What to do? That’s where 18 U.S.C. § 1507 comes into play.
Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.
Nothing in this section shall interfere with or prevent the exercise by any court of the United States of its power to punish for contempt.
The statute criminalizes what might otherwise be deemed protected speech under the First Amendment if done “with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.” Has there every been a protest that wasn’t meant to influence someone? Isn’t that the core reason for protest, to express grievances to government officials? Could that possibly be criminal?
In Cox v. Louisiana, the Supreme Court held that laws protecting the court system from outside influence did not violate the First Amendment.
There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process. A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.
The Court’s rationale was that protests against the judiciary was not “pure speech,” but a combination of speech and conduct that takes it outside the First Amendment’s protection.
We hold that this statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and that the fact that free speech is intermingled with such conduct does not bring with it constitutional protection….
Whether this rationale holds water or is a bit of Supreme sophistry is another matter. Whether the DoJ will act upon this statute should people decide that Sam Alito, et al., should never be able to walk about in public again without being swarmed remains to be seen. But the prospect for this getting worse for all involved seems beyond doubt. Then again, the grasp of the unduly passionate tends to end with “Be nice to your oppressors or they might oppress you.”
Then again, did Justice Alito not realize the damage his Dobbs draft would do?
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