Youngkin and Hogan on Wednesday urged U.S. Attorney General Merrick Garland to enforce a federal law banning protests intended to influence judges on pending cases, angering protesters galvanized by the leak of a draft notice suggesting the high court prepares to overturn Roe vs. Wadethe 1973 decision guaranteeing access to abortion nationwide.
Youngkin and Hogan wrote to Garland just days after some conservatives criticized Youngkin for failing to arrest protesters outside the Alexandria, Va., home of Judge Samuel A. Alito Jr. under a state law prohibiting demonstrations in private residences.
The protesters insist they are exercising their First Amendment rights and have challenged the idea that they were trying to illegally influence judges. On Thursday, abortion rights group Bans Off My Body announced on Facebook that it planned to picket in Montgomery County, Maryland, at the home of Chief Justice John G. Roberts Jr. and Judge Brett M. Kavanaugh every Wednesday evening in May.
Today, @GovernorVA and sent a letter to Attorney General Merrick Garland asking the Justice Department to provide adequate resources to ensure the safety of Supreme Court justices and their families amid ongoing protests at their homes. pic.twitter.com/6D0bMGSp3q
— Governor Larry Hogan (@GovLarryHogan) May 11, 2022
“There is no change of heart. We are expressing our fury, our rage,” said Donna Damico, a 70-year-old grandmother who protested outside Kavanaugh’s home last week. “We’re helpless, and that’s really all we have other than praying for people to vote in November.”
The two governors – both potential candidates for the 2024 Republican presidential nomination – said the protests were best handled by the man President Biden had chosen to lead the Justice Department.
“It is your responsibility to ensure that applicable federal law is enforced to preserve the integrity of our American justice system and the safety of our citizens,” they wrote.
Several protesters outside Kavanaugh’s home on Wednesday evening rejected the premise of the Governors letter.
“I don’t think a group of neighbors walking with candles is going to change Kavanaugh’s mind — or put him in danger,” said Lynn Kanter, who walked five blocks from her house to join, carrying a small sign saying “keep your prohibitions”. and your hands to yourself.
Yes, experts say protests at SCOTUS judges’ homes appear illegal
“It’s absolutely hypocritical,” she said of the idea that judges should be given an extra measure of confidentiality, “because the Supreme Court wants to have control over women’s wombs and yet the sidewalk in front of their homes is kind of sacred ground.”
Protesters began gathering outside the homes of Alito, Kavanaugh and his neighbor, Roberts, shortly after the opinion leaked last week.
On Wednesday night, they started outside Kavanaugh’s house and marched to Roberts’ house, before returning to Kavanaugh’s house, protesters Nadine Seiler and Karen Irwin said. The group was nearly matched by about 15 local and federal law enforcement officers, who stood outside Kavanaugh’s home as protesters slowly walked up and down a 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 put in place a “perimeter” limiting vehicle and pedestrian access in the Alito neighborhood. Fairfax County officials, however, pushed it back, saying it would amount to an unconstitutional “checkpoint.”
Hogan did not recommend a perimeter around the homes of judges who live in Maryland, according to spokesman Michael Ricci, who said the governor leaves the details up to law enforcement.
Although peaceful, the protests appear to have been illegal, according to several legal experts. They cite a federal law that Youngkin and Hogan refer to in their letter: a 1950 law that prohibits demonstrations “for the purpose of influencing a judge.”
Federal law treats protests focused on judges differently than those focused on politicians, for example; lawyers are supposed to be immune to public pressure or the appearance of it.
Anti-abortion lawyer worked for years to overthrow Roe, but worries about next steps
Federal law applies to any demonstration intended to influence a judge, regardless of location, so it would apply as much to protesters gathered in a courthouse as to those picketing in the suburbs. Protests are taking place outside the Supreme Court all the time — 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 in the Eastern District of Michigan.
McQuade noted that federal judges in recent years have faced real threats of violence and that she disliked protests targeting officials’ homes. But the Justice Department, she said, should also weigh its concern for protecting people’s First Amendment rights in deciding whether to sue.
“I think it’s a very dangerous thing when people start demonstrating outside the homes of officials; however, I also think it is very dangerous to suppress peaceful protests,” she said.
Separately, Virginia and Maryland have laws on their books prohibiting events of any kind in or near private residences.
Maryland’s 1971 criminal ban on picketing people’s homes was struck down in state courts as unconstitutional six years later, after men convicted of picketing the secretary’s Montgomery County home Defense attorney Donald H. Rumsfeld appealed and had the law struck down.
Virginia’s law against picketing dates back to at least 1950. Some conservatives lambasted Youngkin this week for not using it to stop picket lines at Alito’s home, despite enforcement being left to authorities Fairfax County local authorities, not to the Governor.
“State law is subject to a fine, and frankly, it’s a weak law,” Youngkin said Thursday.
Youngkin’s allies, including Attorney General Jason Miyares (right) and Lt. Gov. Winsome Earle-Sears (right), have pointed fingers at Fairfax County Attorney Steve Descano, suggesting the liberal prosecutor should carry complaint under state law.
“I will not sue members of the community for peacefully exercising their First Amendment rights,” Descano said Thursday. “I am appalled that this is Mr. Miyares’ goal when the rights of thousands of Virginia women to make their own health decisions are threatened by the Supreme Court’s impending Roe decision.”
Police and prosecutors in more conservative parts of the state have also been reluctant to enforce state law amid questions about its constitutionality. Clark Mercer, who served as chief of staff to Youngkin’s predecessor, Democrat Ralph Northam, said he strongly supports the right to protest but was concerned when a man showed up at his county home of Hanover with a huge sign referencing Biden and an expletive.
“I immediately contacted the police,” he said. “And they looked into it. Their first reaction was that they thought it was a crime. …there’s a state law on the books [prohibiting protests at homes] it’s crystal clear.
But Mercer said police later learned from the local prosecutor that the law may not hold.
Youngkin and Hogan refer only to federal law in their letter, saying the protesters clearly intend to influence the judges, given “that the document in question is a draft opinion.” But they nonetheless refer to the intrusive nature of a home protest.
“While it is common to protest against a final opinion of the Supreme Court when it is made on the steps of the Court or in the public square, the circumstances of the current picketing at the private homes of judges in residential neighborhoods are starkly different,” they wrote.
Youngkin delved into that point in a Fox News interview with Neil Cavuto on Wednesday afternoon.
“It’s fundamentally wrong to have people showing up at the judges’ homes and trying to influence and intimidate them,” he said. “It clearly says in federal law that it is wrong, and the Attorney General must enforce it.”
Justice Department spokesman Anthony Coley said in a statement Wednesday that Garland is monitoring the situation and has “directed the U.S. Marshals Service to help ensure the safety of the judges by providing additional support to the Marshal of the Supreme Court and Supreme Court Police”.
In front of Kavanaugh’s house, a neighbor mobilizes for the right to abortion
Hogan’s spokesperson said the governors hoped the release of their request would expedite a resolution for law enforcement and the judges’ neighbors, given that these protests appear likely to continue at least until this for the court to make a final abortion decision.
“The public needs to understand that this is going to be an ongoing issue in the weeks to come, and we want to make sure there’s a plan in place,” Ricci said.
On Fox, Youngkin noted that Virginia State Police “stand ready” to assist federal marshals and local law enforcement. He also noted that he had instructed local authorities to “create a perimeter” around each of the judges’ homes with the assistance of state police “as needed.”
Fairfax County’s response to this request was not mentioned on the show: no.
“Your suggestion to establish a ‘perimeter’ for the purpose of ‘limiting unauthorized vehicular and pedestrian access’ to the neighborhoods surrounding the judges’ homes is paramount to a checkpoint that the federal courts have ruled contrary to the fourth amendment. There are also obvious First Amendment concerns,” said Jeffrey C. McKay (D-At Large), chairman of the Fairfax County Board of Supervisors, in an email to Youngkin on Wednesday.
Ellie Silverman, Justin Jouvenal, Matt Zapotosky, Gregory S. Schneider and Antonio Olivo contributed to this report.