Where, If Anywhere, Should People Protest Judicial Decisions?

Posted in: Constitutional Law

Supporters of abortion rights recently protested in front of the homes of some of the Justices expected to join in a version of Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Org. These actions raise both legal and strategic questions. After addressing some of those questions below, I ask where, if anywhere, protests against judicial decisions are appropriate.

Are Home Protests Lawful?

The First Amendment protects the right to free speech and to peaceable assembly. Moreover, the Supreme Court’s cases have long treated public spaces such as streets, sidewalks, and parks as “traditional public fora” in which protesting is constitutionally protected. Nonetheless, the Court upheld a local ordinance forbidding protesting that targets a particular home in the 1988 case of Frisby v. Schultz. While rejecting the suggestion that government could forbid all street or sidewalk protesting in a residential neighborhood, the Court allowed that the challenged ordinance—which the Court construed as neutral with respect to the content and viewpoint of any protest—was valid on the ground that the First Amendment does not entitle protesters to speak at length to unwilling listeners who are effectively captives in their homes.

Accordingly, if the state or locality in which any Supreme Court Justice or other government official resides has or enacts a law forbidding targeted home picketing regardless of the message conveyed, such a law could be applied consistent with the First Amendment. Just how far such a law could permissibly go is unclear, however. In Frisby, the ordinance as understood by the Supreme Court would have allowed protesters to pass by the home of the target of a protest but not to linger in front. Subsequent cases do not fully clarify the line between proscribable directed picketing and constitutionally protected marches that briefly pass the home of the protesters’ target.

Meanwhile, some of the protesters’ critics have suggested that an existing federal statute already makes protests outside the homes of Justices illegal. The law forbids “picketing or parading . . . with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge . . . in the discharge of his duty . . . in or near a building housing a court . . . or residence . . . .”

Is that statute constitutional? The Supreme Court upheld an essentially identical state law in the 1965 case of Cox v. Louisiana. The crowd in Cox assembled outside a courthouse to protest criminal indictments being processed inside. The Court thought the statute could be validly applied because of the strong interest in protecting judges against intimidation. If Cox remains controlling, the federal statute is also valid as applied to protests outside judges’ and justices’ homes. After all, a protest outside a judge’s home can be at least as intimidating as a protest outside a courthouse.

Yet Cox seems difficult to reconcile with the later decision in United States v. Grace, in which the Supreme Court ruled that the streets and sidewalks outside its own building are a public forum in which the First Amendment protects peaceful protest. Although the Court did not expressly overrule Cox in Grace, the Grace Court appeared to reject the principal rationale for the Cox ruling. Justice Byron White’s majority opinion in Grace said that the government’s interest in protecting judges from outside influence did not justify forbidding peaceful marching and picketing outside a courthouse. Justice Thurgood Marshall, in a separate opinion in Grace, went further to suggest that the Cox ruling could only be reconciled with the First Amendment by emphasizing the statutory requirement that the government show an intent to intimidate. To be sure, in Cox the Court allowed an inference of intent to intimidate from the protest itself without direct evidence of such intent, but per Justice Marshall’s suggestion, that aspect of Cox does not appear to be controlling precedent anymore.

Accordingly, although some uncertainty remains, the First Amendment as currently construed by the Supreme Court would seem to protect a right to peaceable protest near the home of a judge or Justice so long as: (a) the protesters merely pass by but do not linger at the home; and (b) they do so without the intent to intimidate.

Are Home Protests Helpful?

One might have a constitutional right to engage in some form of protest but also have prudential reasons to refrain from doing so. Thus, a recent article in the New York Times noted that even some protesters worry that the debate over the propriety of home protests distracts attention from the issue that sparked the protests: the apparently impending criminalization of most abortions in about half the country.

That same article also quotes abortion rights activists who point out the hypocrisy of conservative critics of the protesters. For example, Missouri Republican Senator Josh Hawley, who recently called for the Justice Department to investigate and prosecute peaceful protesters seeking the preservation of abortion rights, famously raised his fist in solidarity with the insurrectionists who sought through violence to overthrow American democracy. And more broadly, it is hard to take seriously the complaints of anti-abortion politicians who have for decades been uninterested in protecting vulnerable doctors, nurses, and women seeking abortions from the sometimes-deadly and always-unwelcome “sidewalk counselors” who accost them when they are most vulnerable.

We can grant that the backlash against the outside-the-home protests emanates from shameless hypocrites. Nonetheless, it does serve as a distraction from Roe’s imminent overruling. Savvy activists pay attention to the likely consequences of the tactics they choose, even if those consequences are unjustified or a result of their opponents’ cynical hypocrisy.

In addition, there is a worry that justifications for protesting outside the homes of the Justices expected to overturn abortion rights will be used by conservative activists to justify similar or worse harassment of judges, legislators, and even ordinary citizens who espouse liberal positions on abortion, gun control, public health measures, and more.

Yet it appears that ship has already sailed. Doctors who perform abortions have been murdered. Soon after he authored the lead opinion in Roe v. Wade, Justice Harry Blackmun began receiving death threats. In 1985 someone—presumably an abortion opponent—fired a 9-millimeter bullet through a window into Blackmun’s home when he and his wife were present. During the first-year of the COVID-19 pandemic, roughly one in ten public health officials reported threats to their own or their families’ safety from people who objected to restrictions on their freedom. And then there was the mob that came for House Speaker Nancy Pelosi and Vice President Mike Pence on January 6, 2021. Against this backdrop, the notion that a few peaceful protests by abortion-rights proponents could unleash unpleasantness from the other side of the political spectrum seems more than a bit precious.

In the end, there may be remaining tactical advantage for the abortion rights movement in holding the high moral ground—going “high” when the other side goes “low,” in former First Lady Michelle Obama’s memorable phrase. Whether that advantage outweighs any benefits from peaceful protests outside the homes of Supreme Court Justices is difficult to answer in the abstract.

Where to Protest?

Suppose that protesting outside the homes of Justices or other public officials is foreclosed either through law or on prudential grounds. Where, then, should activists who wish to make their voices heard protest?

The obvious answer is at the Supreme Court itself, but in the days following the leak of the Dobbs draft, the marshal of the Court ordered the erection of a security fence that keeps the public far away. That move does not directly contradict the Grace decision deeming the area outside the Court a public forum. If government closes a street or sidewalk to all uses, including non-expressive ones like driving, jogging, or walking a dog, the First Amendment does not require exceptions for those who wish to use the street or sidewalk for speech.

However, the fence around the Supreme Court is not just a physical barrier. It also symbolizes the Court’s isolation and the faux-objectivity of the conservative majority. Justice Alito’s Dobbs draft approvingly quotes the late Chief Justice Rehnquist’s dissent in Planned Parenthood v. Casey for the proposition that the Court’s work should not be “subject to the vagaries of public opinion.” There is a sense in which that is true, of course. A constitution, by its nature, places certain matters beyond the realm of public opinion as filtered through the day-to-day political process. But in at least three other senses, the professed disdain for public opinion is disingenuous or even pernicious.

First, the Supreme Court stands prepared to overrule Roe and Casey because of public opinion, just not the opinion of a majority of the public. The imminent reversal results indirectly but ineluctably from the opinions of Republicans. Because they relentlessly exploited the minoritarian features of our constitutional system—the Senate and the Electoral College—Republicans stand on the brink of rolling back a nearly fifty-year-old precedent that most Americans support. The Supreme Court majority for something like Justice Alito’s draft would not exist were it not for then-Majority Leader Mitch McConnell’s stonewalling of President Barack Obama’s nominee, Donald Trump’s unexpected 2016 Electoral College victory despite his loss of the popular vote, the untimely death of Justice Ruth Bader Ginsburg, and the hypocritical rush to confirm Justice Amy Coney Barrett to replace her. All of that was accomplished by hardball politics channeling Republican base public opinion favoring abortion bans.

Second, constitutional text and the history that the Alito draft in Dobbs makes decisive are profoundly under-determinate, thus leaving a great deal of room for personal values, which in turn reflect public opinion. Consider that in the 2008 case of District of Columbia v. Heller, the five Justices in the majority thought that the text and history of the Second Amendment protect an individual right of armed personal self-defense, while the four dissenting Justices concluded that the provision protects only “a right to use and possess arms in conjunction with service in a well-regulated militia.” One would need to be especially naïve to think that disputes about language or the historical material explain more than a small portion of that division. Rather, all five majority Justices were substantially more conservative than all four dissenting Justices—and as with abortion, so with gun control, the opinions of the public who vote for the politicians who name Justices make themselves felt indirectly through the opinions the Court hands down.

Third, public opinion should be relevant to the recognition of rights under the Fourteenth Amendment. Justice Alito would reject an abortion right on the ground that abortion was not legal when the Constitution or the Fourteenth Amendment was adopted. That history is hotly contested, but even if we grant the historical claim for the sake of argument, surely the past half century is relevant to what is “deeply rooted” in our current society.

Women did not get the franchise for over half a century after the adoption of the Fourteenth Amendment. Meanwhile, for nearly half of the period since the Nineteenth Amendment’s adoption—and for the entire period since the Supreme Court first recognized official sex discrimination as inherently invidious—women have had the right to abortion. At most, Justice Alito’s draft opinion shows that abortion was not deeply rooted in the deeply sexist society that pre-dated the modern era. By contrast, people taking to the streets to demonstrate for reproductive autonomy show that the abortion right has deep roots in the society in which we now live.

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To all of these points, Justice Alito’s draft would appear to give the same insincere and inadequate answer: take the matter up with state legislatures or Congress. One would have greater faith in the sincerity of that answer if he applied it consistently, if based on general text Justice Alito and the conservative super-majority were planning to leave gun control, affirmative action, and public health measures to legislative judgment. One would have greater faith in the efficacy of the political process as a means of protecting reproductive rights if the Supreme Court’s conservative majority had not exacerbated the minoritarian features of our Constitution by gutting the Voting Rights Act, greenlighting political gerrymandering, and invalidating campaign finance regulations.

Protests at or near the homes of judges and other officials raise legitimately troubling issues about speakers imposing on unwilling listeners. The Supreme Court’s unwillingness to listen to—much less to hear—the voices of the millions of American women poised to lose their liberty and their status as equal citizens raises still more troubling issues about the Court and our democracy.

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