Still No Peace at the Justices’ Houses

Abortion rights activists march outside the home of conservative Supreme Court Justice Amy Coney Barrett June 30 in Falls Church, Virginia.


Michael Reynolds/Shutterstock

When it comes to protecting Supreme Court justices from mob intimidation, the buck seems to stop nowhere. Court Marshal Gail Curley has written to officials in Virginia and Maryland, warning that “protest activity at judges’ homes, as well as threatening activity, has only increased.”

Virginia law prohibits picketing in private homes or gatherings to “disrupt an individual’s right to quiet in his home.” Ms. Curley cites this law in letters to Governor Glenn Youngkin and Fairfax County. She says dozens of protesters stood outside the judges’ houses last week, shouting “No privacy for us, no peace for you!” and sing expletives. “This is exactly the type of behavior that Virginia law prohibits,” adds Ms. Curley.

Maryland has a similar residential peace protection law, which she cites in a letter to Gov. Larry Hogan. Speaking to Montgomery County, Ms. Curley points to a local law that prohibits picketing “in front of or near private homes.” It allows protesters to march through neighborhoods “without stopping at a specific private home.” But crowds have lingered for up to 30 minutes at a time outside the judges’ houses, according to the Marshal.

Why is nobody willing to use such laws against judicial intimidation? Officials have argued that the Virginia and Maryland statutes are unenforceable because they are not content neutral. Both laws have an exception allowing picketing at industrial disputes. In a case from 1980 (Carey vs. Brown) the Supreme Court ruled 6-3 that a similar picketing ban in Illinois was unconstitutional because of a union spin-off that “allows preferential treatment for the expression of opinion on a particular subject.”

Jeff McKay, chairman of the Fairfax County Board of Supervisors, said he believes the Virginia law Ms. Curley cited is unconstitutional. “The law cited in the letter is a likely violation of the First Amendment,” he said. “As long as individuals congregate on public property and do not block access to private homes, they are allowed to be there.”

The local ban on picketing in residential areas in Montgomery County does not indicate suspicious union privilege. The Supreme Court at Carey vs. Brown said it did not intend to imply “that residential pickets are beyond the reach of uniform and non-discriminatory regulation.” It added that a state’s interest in protecting the tranquility of private homes “is certainly of paramount importance in a free and civilized society”.

Even so, Montgomery County doesn’t seem keen on enforcing its picket rule. “We are following the law that provides security and respects the First Amendment rights of protesters,” County Executive Marc Elrich said. “It is noteworthy that the primary responsibility for the safety of Supreme Court justices and their families rests with the federal government.” The county did not provide a specific answer on Tuesday when asked exactly why it is not enforcing its picket ban.

As for the FBI, where is our invisible Attorney General Merrick Garland? Federal law prohibits attempting to influence the courts by picketing judges’ homes. Gov. Youngkin and Hogan have urged Mr. Garland to act, quoting a Supreme Court protester as saying, “If you take our decisions from us, we will riot.” The Justice Department’s response to Messrs. Youngkin and Hogan reads like a form letter to an annoying voter.

The jeering outside the homes of officials, some with young children, is a political escalation Americans may soon regret. Virginia and Maryland, where many government bigwigs live, would do well to shore up their laws by getting rid of these erroneous worker exemptions. Montgomery County may try to enforce its ban, and Mr. Elrich may be surprised to find support from much of the public. The same goes for Mr Garland. If not, they bear some responsibility for setting the ugly precedent.

Review and Outlook (6/19/22): Protests outside the homes of Supreme Court Justices began in early May, and on June 8, 2022, a man was arrested after telling police he planned to kill Brett Kavanaugh. So why is Nancy Pelosi sitting on a bill to protect judges’ families? Image: Jacquelyn Martin/Associated Press

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Appeared in the print edition on July 6, 2022. Still No Peace at the Justices’ Houses

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