Youngkin and Hogan on Wednesday urged U.S. Attorney General Merrick Garland to enforce a federal law that forbids demonstrations intended to sway judges on pending cases, eliciting anger from protesters galvanized by the leak of a draft opinion suggesting that the high court is preparing to overturn Roe v. Wade, the 1973 decision guaranteeing access to abortion nationwide.
Youngkin and Hogan wrote to Garland just days after some conservatives faulted Youngkin for not having protesters outside the Alexandria, Va., home of Justice Samuel A. Alito Jr. arrested under a state statute prohibiting demonstrations at private residences.
Protesters insist they are exercising their First Amendment rights and questioned the notion that they were trying to illegally influence the justices. On Thursday, the abortion rights group Bans Off My Body announced on Facebook that it plans to picket the Montgomery County, Md., homes of Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh every Wednesday evening in May.
Today, @GovernorVA and I sent a letter to Attorney General Merrick Garland calling on the Department of Justice to provide adequate resources to keep the Supreme Court justices and their families safe amid ongoing protests at their homes. pic.twitter.com/6D0bMGSp3q
— Governor Larry Hogan (@GovLarryHogan) May 11, 2022
“There’s no changing their minds. We’re expressing our fury, our rage,” said Donna Damico, a 70-year-old grandmother who protested outside Kavanaugh’s 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 contenders for the 2024 Republican presidential nomination — said the protests were something better addressed by the man President Biden picked to run the Justice Department.
“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, Roberts, not long after the opinion leaked last week.
On Wednesday night, 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 on Wednesday 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.”
Hogan has not recommended a perimeter around homes of justices who live in Maryland, according to spokesman Michael Ricci, who said the governor is leaving the details to law enforcement.
Although peaceful, the demonstrations appear to have been illegal, several 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; jurists are meant to be insulated from public pressure or the appearance of it.
The federal law applies to any demonstrations meant to influence a judge, no matter the location, so it would apply to protesters gathered at a courthouse as much as those picketing in suburbia. Demonstrations play out all the time outside the Supreme Court — without federal charges — while related cases are being argued inside.
“Just because you can charge, doesn’t mean you should,” said Barb McQuade, a former U.S. attorney for the Eastern District of Michigan.
McQuade noted that federal judges in recent years have faced real threats of violence, and she was not fond of demonstrations targeting public officials’ homes. But the Justice Department, she said, would also have to weigh its concern with protecting people’s First Amendment rights in deciding whether to bring a case.
“I think it is a very dangerous thing when people are starting to protest outside the homes of public officials; however, I also think it is a very dangerous thing to crack down on peaceful protests,” she said.
Separately, Virginia and Maryland have laws on their books prohibiting demonstrations of any kind at or near private residences.
Maryland’s 1971 criminal ban on picketing people’s homes was overturned by state courts as unconstitutional just six years later, after men convicted of picketing then-Defense Secretary Donald H. Rumsfeld’s Montgomery County home appealed and had the statute struck down.
Virginia’s law against picketing homes dates to at least 1950. Some conservatives blasted Youngkin this week for not using it to have pickets arrested at Alito’s house, although enforcement would be up to local authorities in Fairfax County, not the governor.
“The state statute is punishable with a fine, and in all candor, it is a weak statute,” Youngkin said Thursday.
Youngkin allies, including Attorney General Jason Miyares (R) and Lt. Gov. Winsome Earle-Sears (R), pointed the finger at Fairfax County Commonwealth’s Attorney Steve Descano, suggesting the liberal prosecutor should pursue charges under the state law.
“I will not prosecute community members for peacefully exercising their first amendment rights,” Descano said Thursday. “I’m appalled that this is Mr. Miyares’s focus when the rights of thousands of Virginia women to make their own health care decisions are threatened by the Supreme Court’s impending Roe decision.”
Police and prosecutors in more conservative parts of the state have also hesitated to enforce the state law 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 Biden and an expletive.
“I reached out to police immediately,” he said. “And they looked into it. Their initial reaction was, they thought it 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.
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.” But they 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,” 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.
Ellie Silverman, Justin Jouvenal, Matt Zapotosky, Gregory S. Schneider and Antonio Olivo contributed to this report.