The Rise of Political Intimidation

Show Notes

A leaked early draft of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health has spurred abortion supporters to stage loud, but so far peaceful protests, not just outside the Supreme Court building on Capitol Hill, but in front of the private homes of several of the Court’s justices. This is clearly meant to intimidate and harass the justices who support overturning Roe v. Wade, the 1973 decision that declared abortion to be a constitutional right.

When does protest become intimidation? Should we condone it when the same political harassment that presidents, senators, and congressmen must sometimes endure is directed at the nine lifetime-appointed justices of the Supreme Court?

Someone, possibly a clerk, leaked a draft of the Court’s majority opinion, written by conservative justice Samuel Alito, to Politico, which published it. Within hours, angry mobs formed at the Supreme Court building to protest a decision that had not yet been made. Within days, similar pro-abortion mobs began appearing curbside in front of the suburban homes of justices Kavanaugh, Thomas, Alito, and Barrett. The protests have so far remained peaceful, but this kind of political expression that happens occasionally to senators and congressmen in public is unfamiliar to the Court’s members. Extra security measures have been approved for the justices in light of the protests and the Court’s impending decision announcement, expected next month.

Eric Eggers and Peter Schweizer explore the topic in the latest episode of The Drill Down.

Eric notes that congressional representatives are elected and answerable to the people who elected them, whereas the US Constitution deliberately insulates Supreme Court justices from public pressure. As one example, Republican Texas Sen. Ted Cruz was screamed at while dining with his wife by organized protesters who trespassed into the Washington, DC restaurant to do it. No arrests were made. Most veteran politicians become accustomed to such attempts at intimidation, and Cruz himself shrugged and said, “it goes with the territory.”

It is rare that it happens to judges, but not unknown.

Eric tells a story many might not be familiar with, of federal judge in Virginia named Robert R. Merhige, Jr. In the early 1970s, Merhige’s orders to integrate dozens of Virginia’s school systems made him “the most hated man in Richmond in the early 1970s and required 24-hour protection by U.S. marshals. Segregationists threatened his family, spat in his face and shot his dog to death after tying its legs. Protesters held weekly parades outside his home. A guest cottage on his property, where his mother-in-law lived, was burned to the ground,” according to the Washington Post.

Another federal judge in Alabama during the civil rights era, Frank M. Johnson Jr., had experienced so much intimidation for his rulings that federal marshals provided him round-the-clock protection for almost 15 years, beginning after a cross was burned on his front lawn in December 1956 following the Supreme Court’s final order to desegregate the buses in Montgomery. Without complaint, he endured social ostracism, death threats, and the bombing of his mother’s home in the mistaken belief that the home was his. In 1965, Johnson’s ruling allowed Martin Luther King’s Selma-Montgomery march to proceed.

Peter and Eric criticize the response from the White House under President Joe Biden as seeming to encourage the protests at the homes of the justices. A White House spokeswoman said, “We know the passion. We understand the passion. We understand the concern. But what the president’s position is, is that that should be peaceful — the protests.”

There is a law that would seem to apply to this. Federal US code 1507 says, any individual who “pickets or parades” 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” near a US court or “near a building or residence occupied or used by such judge, juror, witness, or court officer” will be fined, or “imprisoned not more than one year, or both.” No arrests or fines have been issued to the protesters at the justices’ homes.

Peter says this activity amounts to a veiled threat against the justices. “They’re saying, ‘I know where you live. I’m going to make your life miserable if you don’t vote the way I want.’”

Continuing, Peter says of the Biden administration, “They wanted to energize Democratic voters and there’s no question that Joe Biden and a lot of Democrat leaders are encouraging these protesters because they see this as a way of keeping Democratic majorities in the House and the Senate by angering their voters over Roe v. Wade.”

While the Supreme Court is not used to having their home addresses made public, they are used to criticism. President Obama actually called them out during his State of the Union address in 2010, for its decision in the Citizens United case. After the Court’s famous decision in Brown v. Board of Education, Chief Justice Earl Warren was threatened with impeachment. But the justices have not yet had to endure anything like what happened to Arizona Democratic Senator Krysten Sinema, who was followed and filmed last year in a public women’s bathroom by an organized group of protesters angry over her vote on, of all things, an infrastructure bill.