The Ghost of McCarthy

Justice Samuel Alito authored the draft opinion in Dobbs v. Jackson Women’s Health Organization that was leaked to Politico last week. In the opinion, Alito writes the Roe decision “was egregiously wrong from the start” and finds that the Constitution “does not prohibit the citizens of each state from regulating or prohibiting abortion.”

The opinion adds that “​​we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” as if to hammer home the conservatives justices’ contempt for the people whose lives they are seeking to upend.

Despite the court’s supposed lack of concern about what the public thinks, tall fences were quickly erected around the Supreme Court building. In recent days, protesters have gathered outside the homes of Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Alito to register their opposition.

There’s no evidence that the protests have been violent, and Congress is already fast-tracking legislation to allow the Supreme Court’s police force to provide security for justices’ families. Notably, the bipartisan bill includes no additional security protections for people who go to abortion facilities amid credible threats of violence.

But still, conservatives and elite pundits are calling for a major crackdown against dissent, pitting themselves against a First Amendment that explicitly states the government may not pass any law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Right’s weapon of choice is a law passed during the Red Scare hysteria of the 1950s.

Senator Josh Hawley (R-MO) wrote a letter to Attorney General Merrick Garland on Tuesday demanding the Justice Department “vigorously investigate and prosecute” those protesting at Supreme Court justices’ homes.

“Federal law makes it a crime for a person, ‘with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty,’ to ‘picket[] or parade[] . . . in or near a building or residence occupied or used by such judge,’” Hawley wrote, adding: “The First Amendment is no shield to this illegal conduct.”

The Washington Post editorial board agreed with this premise, writing a column on Monday arguing that it is crucial to “protect robust demonstrations of political dissent while preventing them from turning into harassment or intimidation.”

To do so, argued the Post, the nation should look to an old law. “A federal law — 18 U.S.C. Section 1507 — prohibits ‘pickets or parades’ at any judge’s residence, ‘with the intent of influencing’ a jurist ‘in the discharge of his duty,” noted the editorial. “These are limited and justifiable restraints on where and how people exercise the right to assembly. Citizens should voluntarily abide by them, in letter and spirit. If not, the relevant governments should take appropriate action.”

On Tuesday, Post columnist Marc Thiessen, who worked as the chief speechwriter for President George W. Bush at the time that Roberts and Alito were confirmed to the court, amplified this argument, writing an opinion piece calling on the Biden administration to “enforce federal law barring harassment of the justices and their families in their homes.”

The supposedly “limited and justifiable” anti-picketing statute being cited by all these people — 18 U.S.C. § 1507 — was enacted as part of the Internal Security Act of 1950, a law requiring communist organizations to register with the government. This particular statute was specifically written to respond to reports of protests outside federal courts during US prosecutions of alleged communist party leaders.

One of the statute’s proponents, segregationist Senator Allen Ellender (D-LA), explained at the time: “The practice of picketing courts is of recent origin, and apparently has been employed almost solely in connection with proceedings involving alleged Communist Party members and sympathizers. . . . If we are to keep our national judiciary on the high plane it has enjoyed since the founding of this country, we must restrain these disgraceful practices, adopted by persons and groups who would undermine our country by first undermining our judiciary.”

The Supreme Court has subsequently struck down portions of the broader Internal Security Act. Furthermore, in 1983, the court limited the government’s prohibition on protests outside the Supreme Court, finding that the First Amendment protects picketing on sidewalks surrounding the court.

While the Post’s Aaron Blake wrote a story Wednesday headlined, “Yes, experts say protests at SCOTUS justices’ homes appear to be illegal,” one of conservatives’ go-to constitutional law scholars has said that relying on the Internal Security Act statute to quash protests could have troubling Constitutional implications.

George Washington University law professor Jonathan Turley, who has criticized the protests at justices’ houses, wrote a column in the Hill on Tuesday arguing that using the anti-picketing statute “to arrest protesters would be a serious blow to free speech and would be difficult to defend in the courts.”

He similarly told the Wall Street Journal: “As a free speech advocate, I would be very concerned about the use of that statute. I think that what these protesters are doing is reprehensible. I think it’s equally reprehensible for President [Joe] Biden not to denounce this. But when we start to charge protesters with crimes because they’re appearing at the homes of figures, including Supreme Court justices, you really do raise some first amendment concerns.”

Turley added, “I do think that if you brought a prosecution, it would raise some serious constitutional questions. And I would not bet on that being upheld on appeal.”

Selective Outrage

Beyond the troubling historical legacy of the statute they are referencing, there is another problem with conservatives calling for the detention of these protesters: they only seem to worry about such demonstrations when they’re being done by the Left.

Hawley, for example, didn’t call for anyone to “vigorously investigate and prosecute” the insurrectionists who violently stormed the US Capitol last year. In fact, he cheered on those protesters shortly before the insurrection and since then, his campaign has been selling merchandise sporting pictures of him raising a fist to those insurrectionists.

Similarly, while the Post’s editorial board noted that it is important to prevent political dissent “from turning into harassment or intimidation,” the antiabortion movement has been known to picket the homes of people who work at abortion clinics — and worse. Violence against abortion clinics has been on the rise, and clinics around the country are worried that attacks will spike after the Supreme Court issues its abortion decision.

What’s more, the Supreme Court has in the past approved efforts by protesters to picket private residences — and specifically did so in a case involving protests by the antiabortion movement outside the homes of abortion clinic workers.

In 1994, the Supreme Court found that a Florida court’s content-neutral injunction creating a three-hundred-foot protest-free buffer zone around the residences of abortion clinic workers’ homes was unconstitutional and overbroad. The court found “a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired result.”

Finally, by selectively boosting outrage over public protests, corporate media is only making matters worse. After the George Floyd protests in 2020, major outlets appeared far more concerned about the specter of looters and rioters than they were about the actual grave injustice of a police officer murdering an unarmed black man for allegedly using a counterfeit $20 bill.

News outlets have also been deeply perturbed by activists’ calls to “defund” the police in the wake of Floyd’s murder. While no cities have actually slashed police budgets, it’s become incredibly common for pundits and conservative Democrats to say that the “defund” movement is weighing down the party.

Thanks to such selective hullabaloo, new legislative attempts to curtail public protests will likely be forthcoming — and unlike Democratic lawmakers’ doomed attempt to protect abortion rights on Wednesday, these efforts could be successful.

On Monday, the US Senate unanimously passed a measure offered by Senators John Cornyn (R-TX) and Chris Coons (D-DE) to extend Supreme Court Police protection to justices’ families.

A previous version of the legislation offered by Cornyn would have allowed the Supreme Court Police to arrest anyone who “knowingly and willfully obstructs, resists, or interferes with a member of the Supreme Court Police” busy protecting justices or their families. Coons noted in a press release, “Sections from an earlier draft of this bill were removed prior to introduction, citing free speech concerns.”