Republicans cited a 1950 federal law banning certain protests outside the judge’s residence, as they demanded Attorney General Merrick Garland enforce the law against abortion rights protesters who gathered in front of the homes of Supreme Court justices.
The law in question is intended for any “sit-up or parade” in front of the courtroom or the judge’s home with the aim of influencing “any judge, juror, witness or court officer in the performance of his duty.”
Republicans say the recent demonstrations — which came after a leaked majority opinion draft suggested the Supreme Court was preparing to overturn abortion rights precedents — fit the bill clearly.
Here’s what to know about the law, how it applies to current circumstances, and whether it’s constitutional.
The law, enacted by Congress in 1950, makes it illegal to picket or march “with intent to influence any judge, juror, witness, or court officer, at discharge”…” in or near a building housing a court of the United States of America, or in or near a building or dwelling occupied or used by such judge, juror, witness, or court official.”
Those found guilty face a fine or a prison sentence of up to a year.
When the Senate was considering the legislation in 1950, its supporters pointed to a sit-in that had taken place outside the trial of Communist sympathizers. The judge’s residence in the case has also been picketed, according to the Congressional record of Senate observations on the legislation.
“It is clear that such activities, if allowed to proceed unfettered, would not only detract from the dignity of our judicial process but would ultimately detract from justice,” said then-Louisiana Senator Allen Elender.
Republicans now say the demonstrations outside the homes of Supreme Court justices are clearly covered.
“These are clear efforts to bully the court in response to Dobbs’ leaked opinion,” Republican Iowa Senator Chuck Grassley said in a Wednesday letter to Garland, referring to the abortion case currently before the Supreme Court.
Although the law has usually been associated with protests outside the courts where high-profile trials are being held, legal experts said, at least in general terms, the law can be applied to current circumstances.
“Certainly, on the face of it, the sit-in is covered in or near — in this case it will be soon — a residence occupied or used by such a judge,” said Eugene Voloch, a professor of constitutional law at UCLA.
Because the draft had been leaked but the verdict had not been issued, Volokh said, “It seems to me that it would be very easy to prove that it was with intent to influence.”
However, according to Drexel University Law School Professor Tabatha Abulhaj, protesting a pending opinion of the Supreme Court on a highly partisan case can be seen as different from intimidating a judge or jury to consider a particular person’s conviction.
“The application of this law to this situation raises this fuzzy line between rhetoric or demonstrations that actually aim to intimidate or undermine the judicial process in a fundamental way,” she said. “It is true that this could undermine the judicial process if opinion changes, but it really does appear to be intended to express frustration.”
If the courts were to put the matter on a clean slate, Volokh said, they might find reasonable arguments for why the demonstrations are constitutionally protected speech.
But the Supreme Court has made decisions in cases involving similar state laws and cases indicating that the courts would be inclined to uphold the 1950 federal law.
In one of these cases, the Supreme Court wrote in 1965 that “the state may adopt necessary and appropriate safeguards to ensure that the administration of justice at all stages is free from outside control and influence.”
Another notable case was the 1988 case of Frisbee v. Schultz, in which the Supreme Court upheld a Wisconsin local ordinance banning picketing “before or around any residence or dwelling.” Coincidentally, the ordinance was passed to address anti-abortion protesters who were camping outside the abortion provider’s home.
William and Mary Law School professor Timothy Zick noted that the Supreme Court has drawn a line between protests targeting a specific residence, versus protests that travel on public streets in a residential neighborhood.
He said that there may be room for legal maneuvering for protesters who participated in the rallies that just passed the House of Justice, although other legal experts have said that the use of the word “parade” in the statute still makes such demonstrations vulnerable to infringement.
Depending on the interpretation of the law, it can also be read to cover the annual anti-abortion march concluding on the grounds of the Supreme Court, a point some law enforcement officials note when asked about protests outside judges’ residences.
The law in question covers a parade or sit-in “in or near a building housing a court in the United States,” including the Supreme Court building, as well as other federal courts.
But other rulings – in cases dealing specifically with restrictions targeting protests in the vicinity of the Supreme Court building – complicate the analogy.
In one case, the Supreme Court overturned restrictions on the display and display of banners on the grounds of the Supreme Court. In agreement, Justice Thurgood Marshall wrote that the law was flawed, in part, because it “was not limited to expressive activities intended to interfere with, obstruct or impair the administration of justice.”
The litigants in that case were participating in demonstrations not specifically related to any ruling the court was considering. There is certainly an argument that the annual March for Life is meant to influence the court’s approach to abortion issues—particularly in years like these, where the demonstration took place while the justices had a case asking them to overturn the court’s abortion rights precedent. .
However, there are still practical reasons to suggest that demonstrations outside the Supreme Court may be viewed differently than those in front of the Residences of Justice, given the amount of security that High Court grounds usually make those protests less physically threatening.
“I think a sit-down outside someone’s home is generally seen as a bigger deal than outside a very difficult target, like the Supreme Court,” Volokh said.
The Department of Justice declined to comment on the Republican Party’s calls to enforce the federal strike law.
As pressure mounted, Department spokesman Anthony Cooley released a statement Wednesday saying that Garland “continues to keep him briefed on security matters relating to the Supreme Court and Supreme Court justices” and that he has instructed the US Marshals Service to provide additional support to agencies normally responsible for protecting the Supreme Court.
The statement did not include any reference to the federal sit-in law. However, the involvement of the US Marshals Service could make it easier for federal prosecutors to press such a charge.
Legal experts have noted that prosecutors, including those in the Department of Justice, have discretion to decide when to file cases and what is the best use of their resources.
The department likely will not enforce the law on a stand-alone charge, but it can address a violation of the law in a case bringing other charges against a protester, for example, who engages in violence.
In addition to the federal picket law, there are state laws and local ordinances that protesters may at some point be charged with violating.
Montgomery County, Maryland – where the protests against Judge Brett Kavanaugh’s residence took place – has an ordinance banning sit-ins “in front of or next to any private residence”.
There were no arrests at this point, and a spokesperson for the Montgomery County State Attorney’s Office said, “We have sworn to respect the law, and as usual, we will consider the individual facts of the case before deciding to prosecute.”
In Virginia, home to the residences of many other judges, there is a state law that prohibits strikes that “disrupt” one’s “right to be quiet in one’s home.”
But Steve Decano, a Commonwealth District Attorney in Fairfax County, where some of the judges live, told CNN in a statement that he “will not sue members of the community for the peaceful exercise of their First Amendment rights.”