The Washington PostDemocracy Dies in Darkness

Yes, experts say protests at SCOTUS justices’ homes appear to be illegal

Abortion rights advocates protest outside the house of Supreme Court Justice Samuel A. Alito Jr. on Monday. (Kent Nishimura/EPA-EFE/Shutterstock)

As Republicans and others cry foul over pro-Roe v. Wade protests at Supreme Court justices’ private homes, Democrats have been forced into a tough spot. The White House has taken to saying that such protests by its abortion rights allies are okay as long as they are peaceful.

Senate Majority Leader Charles E. Schumer (D-N.Y.), meanwhile, cited the protests outside his own home.

“There’s protests three, four times a week outside my house,” Schumer said Tuesday. “The American way to peacefully protest is okay.”

But while protest is indeed ingrained in American democracy, legally speaking, the comparison between protesting a politician at home and a member of the judiciary at home is inexact. And experts say the latter category of protests is probably illegal regardless of how peaceful the demonstrations are.

At issue is a statute enacted in 1950: Title 18, Section 1507, of the U.S. Code. The law states that it is illegal, “with the intent of influencing any judge,” to:

  • picket or parade “in or near a building or residence occupied or used by such judge, juror, witness, or court officer”
  • “or with such intent,” to resort “to any other demonstration in or near any such building or residence”

Tabatha Abu El-Haj, an expert on protest rights at Drexel University’s law school, said that the current protests at justices’ homes qualify under the statute and that the statute, if tested, would probably be found constitutional.

“The statute would seem to apply both because … they appear to be picketing and parading with the relevant intent and at the relevant locations,” Abu El-Haj said, “but also because the statute has a catchall ‘resorts to any other demonstration in or near any such building or residence.’ ”

Timothy Zick of the College of William & Mary, who is writing a book on the subject called, “Managed Dissent: The Law of Public Protest,” agreed.

“The conduct appears to be within the statute’s prohibition,” Zick said. “Picketing includes activities such as demonstrating and protesting. The court has upheld properly tailored restrictions on pickets that target a particular home.”

While the Supreme Court has rarely dealt with this specific statute, it has upheld similar ones.

In 1988’s Frisby v. Schultz, the court upheld a local Wisconsin law that banned protesting targeted at a specific home, as long as protesters were allowed to march through a neighborhood.

Two decades earlier, in 1965, the court upheld a Louisiana law that echoed the federal law’s prohibition on picketing at a court. The laws were enacted amid an outcry over allies of Communist Party defendants picketing federal courthouses.

“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 ruled in Cox v. Louisiana. “A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State’s interest in assuring justice under law.”

That case didn’t deal specifically with banning protests outside the home of a judge or another party to a legal proceeding — but it did uphold a law that would seem to involve less potentially problematic efforts to influence them. And the court has repeatedly suggested protests of legal proceedings should be considered differently, since protests could possibly impact nonpolitical proceedings or even inject merely the appearance of political influence or intimidation into decisions that should be based solely on the law, not public opinion.

“There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process,” the justices wrote in Cox.

They added at another point that “entirely different considerations would apply if, for example, the demonstrators were picketing to protest the actions of a mayor or other official of a city completely unrelated to any judicial proceedings.”

There are instances in which the Supreme Court has limited restrictions on protesting the judiciary, though they don’t appear entirely applicable to the present case.

In 1983, U.S. v. Grace restricted a somewhat similar federal law. The law prohibited the display of “any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement” in the Supreme Court itself or on its grounds.

The court ruled that the law had been improperly applied to public sidewalks on the outer boundaries of the court’s grounds and that those public sidewalks represented “public forums” where free-speech rights enjoyed more protection. But it would seem unlikely that a public road outside a justice’s home would be considered a similar “public forum.”

Abu El-Haj said there is one way in which the federal law could conceivably be challenged. In 1988’s Boos v. Barry, the court struck down a statute prohibiting picketing against embassies “if [the signs tend] to bring that foreign government into ‘public odium’ or ‘public disrepute.’ ” But in that case, the law was subjected to more scrutiny because it was deemed to be content-based — i.e., prohibiting advocating something specific.

Abu El-Haj said that argument isn’t “crazy,” but “I doubt the argument would win the day in this context.”

The tension reflects an increasing politicization of the court — both due to the court’s own actions (in some cases) and how it has been increasingly treated by politicians. The ideal has long been that judges should be insulated from politics. But Americans increasingly view the court as effectively another political branch of government.

The legality of the protests is certainly important. Advocates for abortion rights might argue that, given the stakes and even if illegal, the protests are justified as a form of civil disobedience. (The potential punishments include a fine and up to a year in prison.) But the Biden administration is charged with enforcing federal law. Thus far, the Justice Department hasn’t weighed in.

There are signs that some Democrats are uncomfortable with their party’s posture on this, with Sen. Richard J. Durbin (Ill.) saying Wednesday morning of the protests: “I think it’s reprehensible. Stay away from the homes and families of elected officials and members of the court.”

But the Justice Department isn’t the only one to tread lightly around the subject. So too has Virginia Gov. Glenn Youngkin (R). He is facing increasing pressure from his conservative allies to do something about the protests at the homes of justices who happen to live in his state, like Samuel A. Alito Jr., the author of the draft opinion overturning Roe that set off the current backlash.

Virginia law states that it is a misdemeanor to picket “before or about the residence or dwelling place of any individual” or “assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual’s right to tranquility in his home.” Youngkin has said he is “closely monitoring” the situation, and this would be a local law enforcement issue rather than a state police issue. It’s also possible Virginia’s law is unconstitutional.

But it highlights how there are no easy answers when it comes to potentially policing protests such as these. And as we confront these difficult issues of which protests are okay and which aren’t, it’s worth establishing what’s technically allowed under the actual law.