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Opinion The Kavanaugh threat exposed weaknesses in judicial security — and our discourse

Law enforcement officers stand guard as protesters march past Supreme Court Justice Brett M. Kavanaugh's home in Chevy Chase, Md., on June 8. (Nathan Howard/Getty Images)
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correction

An earlier version of this column incorrectly quoted a statement Brett M. Kavanaugh made at his Supreme Court confirmation hearings. He said, “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind." This version has been corrected.

The news that an armed California man went to Justice Brett M. Kavanaugh’s Maryland home intending to assassinate him is horrifying and intolerable. It should serve as a wake-up call, first and foremost, to ensure that the justices, their families and, if needed, their staffs receive all necessary security.

If the Supreme Court police require more authority or funding to adequately protect the justices, they should have it; the same holds for the U.S. Marshals Service, which provides security for lower-court judges. If more steps are needed to shield personal information about judges or justices, such as their home addresses, that should be done as well.

That’s the easy part.

The harder part is grappling seriously with the implications of this episode, which could have ended in unfathomable tragedy. That means not ducking responsibility for helping to create a climate of unhinged intolerance that may have fueled this dangerous moment. But it also means not leaping to assign blame or hijack the episode to reinforce preexisting conclusions. Deranged individuals do deranged things, and this is true at both ends of the political spectrum.

A handful of federal judges have been killed in office, mostly by disgruntled litigants. In 2005, the husband and mother of a federal judge in Chicago were murdered. In 2020, the son of a federal judge was fatally shot at her home by a man who lost a case before her; there was evidence that the man was also targeting Justice Sonia Sotomayor.

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But in the terrible spasms of politically motivated violence that have plagued the nation, the judiciary has been, thankfully, largely exempt. During the civil rights era, brave Southern judges tasked with implementing the Supreme Court’s desegregation orders faced threats of violence. As the New York Times obituary for Alabama federal judge Frank M. Johnson Jr. recalled, “Crosses were burned on his lawn twice. His mother’s home was firebombed, although she was not hurt. For nearly two decades, Federal marshals protected the judge and his family.”

Do we now find ourselves in another such era, with abortion rights protesters taking the place of massive resisters? And, if so, are Democrats who rail against the excesses, past and future, of this Supreme Court complicit in the threat of violence in the same way that segregationist politicians spurred on Judge Johnson’s attackers?

I don’t think the two are comparable, but it is true that some have gone too far with their rhetoric. One is Sen. Charles E. Schumer (D-N.Y.), who stood on the Supreme Court steps in 2020 in advance of a Supreme Court ruling on a Louisiana abortion law and thundered, about Kavanaugh and Trump appointee Neil M. Gorsuch, “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

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Schumer said he did not intend to threaten the justices or incite violence, but in the current environment, his language was unnecessarily incendiary. “Threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Chief Justice John G. Roberts Jr. cautioned, and the recent episode would seem to prove his point.

Still, it’s possible to take this argument too far. Abortion opponents speak passionately about the imperative of protecting unborn human life. Are they similarly responsible for winding up the zealots who have taken the next steps of bombing abortion clinics or murdering physicians who perform abortions?

Somehow those who complain of rhetorical excess on one side are loath to hold those with whom they agree to the same standards. Indeed, Schumer’s language was oddly reminiscent of Kavanaugh’s angry screed against Democrats at his confirmation hearings: “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.” Those who blasted Kavanaugh cannot credibly excuse Schumer, but also vice versa.

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Some will, no doubt, take the Kavanaugh episode as further proof that the court is reaping the terrible consequences of its unwise intervention in Roe v. Wade itself — inserting the judiciary into a debate better left to the political branches. This, too, is unconvincing.

“The sad reality is that, ever since the court took the matter of abortion out of state legislatures’ hands and vested it with nine unelected judges, Roe has poisoned our politics, our institutions and our civic discourse,” University of Notre Dame law professor O. Carter Snead wrote in a Post op-ed after the leak of the draft ruling in the Mississippi case, Dobbs v. Jackson Women’s Health Organization.

I think the reality is more complicated: that abortion is a deeply contested, deeply felt moral issue, on which people strenuously and irrevocably differ. That will continue whether or not Roe is overturned.

Indeed, the man arrested outside Kavanaugh’s house said not only that he was “upset” by the leaked draft in the Dobbs case but also that he was worried Kavanaugh “would side with Second Amendment decisions that would loosen gun control laws.” Somehow, no one on the conservative side is complaining that the court has erred by displacing the democratic process when it comes to gun rights.

We should be thankful that the man arrested outside Kavanaugh’s home did not get further with his scheme. But at the same time, we must be equally attentive to the systemic vulnerabilities his plot exposed — and careful not to read too much into one deranged individual’s actions.

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