RICHMOND, Va. — The Republican governors of Virginia and Maryland, where the homes of Supreme Court justices have become the targets of protests, are demanding that Attorney General Merrick Garland enforce a federal law that forbids demonstrations intended to sway judges on pending cases.
Demonstrators have gathered over the past week at the homes of several conservative justices, spurred by the leak of a draft opinion suggesting that the high court is preparing to overturn Roe v. Wade, the landmark decision guaranteeing access to abortion nationwide.
Virginia Gov. Glenn Youngkin and Maryland Gov. Larry Hogan wrote to Garland, D, on Wednesday, just days after some conservatives faulted Youngkin for not having protesters outside the Alexandria, Va., home of Justice Samuel Alito Jr. arrested under a state statute prohibiting demonstrations at private residences.
Protesters insist they are legally exercising their First Amendment rights and questioned the notion that they were trying to illegally influence the justices.
“There’s no changing their minds. We’re expressing our fury, our rage,” said Donna Damico, a 70-year-old grandmother who protested outside Justice Brett Kavanaugh’s Montgomery County, Md., home last week. “We’re impotent and this is really all we got other than praying that people vote in November.”
The two governors — both potential 2024 Republican presidential contenders — said the protests were something for President Joe Biden’s Justice Department to address, citing a federal statute outlawing demonstrations intended to influence a judge’s pending decision.
“It is in your hands to ensure that applicable federal law is enforced to preserve the integrity of our American judicial system and the safety of our citizens,” they wrote.
Several protesters outside Kavanaugh’s home on Wednesday night rejected the premise of the governors’ letter.
“I don’t think a bunch of neighbors walking by with candles is going to change Kavanaugh’s mind — or endanger him,” said Lynn Kanter, who walked five blocks from her house to join, carrying a small sign that read, “Keep your bans and your hands to yourself.”
“It’s absolutely hypocritical,” she said of the notion that the justices should be afforded an extra measure of privacy, “because the Supreme Court wants to have domain over women’s uteruses and yet the sidewalk in front of their homes is somehow sacred ground.”
Protesters started gathering outside the homes of Alito, Kavanaugh and his neighbor, Chief Justice John G. Roberts Jr., not long after the opinion leaked last week.
On Wednesday, they started outside Kavanaugh’s home and walked to Roberts’s home, before returning to Kavanaugh’s, said demonstrators Nadine Seiler and Karen Irwin. The group was nearly evenly matched by about 15 local and federal law enforcement officers, who stood in front of Kavanaugh’s home as demonstrators slowly walked up and down one block of his narrow street.
Youngkin, who appeared on Fox News to announce the letter to Garland, also said he would ask local authorities to set up a “perimeter” limiting vehicle and pedestrian access in Alito’s neighborhood. Fairfax County officials rebuffed him, however, saying that would amount to an unconstitutional “checkpoint.”
Although peaceful, the demonstrations appear to have been illegal, legal experts say. They cite a federal law that Youngkin and Hogan refer to in their letter: a statute from 1950 that prohibits any demonstration “with the intent of influencing any judge.”
The federal law treats protests focused on judges differently than those focused on politicians, for example. Both are clearly designed to sway a public official’s actions, but jurists are meant to be insulated from public pressure or the appearance of it.
A Supreme Court decision in Cox v. Louisiana in 1965, upholding a state law modeled after the federal one, ruled “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 justices wrote: “There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process.”
Separately, a Virginia law prohibits demonstrations of any kind at or near private residences.
Youngkin and Hogan refer only to the federal law in their letter, contending that the protesters clearly intend to influence the justices given “that the document in question is a draft opinion.”
While the federal law would apply if protesters gathered at a courthouse instead of in suburbia, the two governors nevertheless reference the intrusive nature of a home-based demonstration.
“While protesting a final opinion from the Supreme Court is commonplace when done on the steps of the Court or in the public square, the circumstances of the current picketing at the Justices’ private homes in residential neighborhoods are markedly different,” they wrote.
Youngkin leaned into that point in a Fox News interview with Neil Cavuto on Wednesday afternoon.
“This is just fundamentally wrong to have people showing up at the justices’ homes and trying to influence and intimidate them,” he said. “It says clearly in the federal statute that this is wrong, and the attorney general needs to enforce it.”
Justice Department spokesman Anthony Coley said in a statement Wednesday that Garland was monitoring the situation and had “directed the U.S. Marshals Service to help ensure the Justices’ safety by providing additional support to the Marshal of the Supreme Court and Supreme Court Police.”
Hogan’s spokesman said the governors hoped publicizing their request would expedite a resolution for both law enforcement and neighbors of the justices, given that these protests appear likely to continue at least until the court issues a final abortion decision.
“The public needs to understand this is going to be an ongoing issue in the weeks ahead and we want to make sure that there is a plan in place,” Hogan spokesman Michael Ricci said.
On Fox, Youngkin noted that Virginia State Police “are at the ready” to help federal marshals and local law enforcement. He also noted that he had asked local authorities to “create a perimeter” around each of the justices’ homes with help from state police “as needed.”
Unmentioned on the show was Fairfax County’s response to that request: No.
“Your suggestion to establish a ‘perimeter’ for the purpose of ‘limiting unauthorized vehicle and pedestrian access’ to neighborhoods surrounding the homes of the Justices is paramount to a checkpoint that federal courts have held violates the Fourth Amendment. There are obvious First Amendment concerns as well,” Jeffrey C. McKay (D-At Large), chairman of the Fairfax County Board of Supervisors, said in an email to Youngkin on Wednesday.
“Our well-trained, sophisticated Fairfax County Police Department stands ready as always to take necessary action, if needed, to protect public safety,” McKay continued. “They do this without consideration of politics or the opinions expressed by any group demonstrating in the County.”
Police and prosecutors in more conservative parts of the state have also hesitated to enforce the state law, which dates to at least 1950, amid questions about its constitutionality. Clark Mercer, who served as chief of staff to Youngkin’s predecessor, Democrat Ralph Northam, said he firmly supports the right to protest but was concerned when a man showed up at his Hanover County home with an enormous sign referencing President Biden and an expletive.
“I reached out to police immediately,” he said. “And they looked into it. Their initial reaction was, they thought was a misdemeanor … There is a state law on the books [prohibiting protests at homes] that is crystal clear.”
But Mercer said police later learned from the local prosecutor that the law might not hold up.
“I was told there’s a case out of Virginia Beach and it went to court and lost, and so that’s called into question the constitutionality,” he said. “My only observation is the legislature should either make sure the law they passed is enforceable and constitutional or take it off the books.”
Police moved with the protesters outside Kavanagh’s house Wednesday night in large vehicles to the front and rear, a formation designed to protect the group from accidental or intentional actions by other motorists.
“We really don’t think this is going to change any of the justices’ minds,” said Karen Irwin, one of the protesters. “But when we see something that is inherently wrong, we have an obligation, as Americans, to stand up and yell about it.”
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The Washington Post’s Ellie Silverman, Justin Jouvenal, Matt Zapotosky and Antonio Olivo contributed to this report.