Why Do the Supreme Court Leak and Protests Matter?
It's part of a larger crisis of perceived legitimacy
Above: protesters on their way to Justice Samuel Alito’s home
[Note from Patterico: I’m going to stop apologizing for posts with a free section and a section behind a paywall. Not every newsletter will take this format, but it will happen sometimes — especially when, as today, I have a lot to say. Lately my newsletters have tended towards long-form essays of 2000-4000 words. Today’s is nearly 5000 words, straining the limits of machine and man, as well as the Substack platform’s tolerance for length. They take time to think about and to write, and I can’t put out a thoughtful essay of that length twice a week. There just isn’t time. In weeks where I write shorter pieces — and that will happen — I can put out an entirely free newsletter on one day and a paid one on another day. But when I write a really long essay like this one, it’s natural to split it up with a paywall. So that is going to happen from time to time.
I am still committed to giving free subscribers a cohesive set of interesting content on a regular basis, while giving something extra to the paid subscribers. Even in a newsletter like today’s with a paywall, you can read to the paywall and hopefully come away with a fresh perspective on the issue being discussed. I hope there is something in today’s missive that challenges everyone’s views.]
A reader asked me: “I would love to read a longer explanation of why you’re as passionate about the [Supreme Court] leak as you are. I see it as a problem and a violation of norms but it doesn’t seem to be as big a deal to me as to you and I suspect I’m missing something important.” Since that question was first posed, we have also an ongoing debate about a question I consider to be very closely related: the phenomenon of large protests at justices’ homes. I consider these developments to be related, not just in the sense that one (the leak) led directly to the other (protests at homes), but also in terms of the nature of the danger they pose to our norms.
I’ll give you a short summary of my concern followed by a long explanation. The short answer is that we have a crisis of perceived legitimacy in this country, for reasons I’ll discuss, one of which might surprise you: a lack of perspective in citizens’ criticism of the government. In many ways, we don’t realize how good we have it.
The one institution that still commands some respect, at least until recent years, is the courts. But that same lack of perspective threatens to drag the courts down with the rest of the institutions that the hyperbolic critics slander.
The leak and the home protests contribute to that crisis of perceived legitimacy, and thus endanger the judiciary, which is possibly the last bulwark we have against those who want to untether us from the rule of law. The leak and the home protests undercut the Court’s perceived legitimacy in a similar fashion: they both reinforce a false impression of the Court as just one more faceless institution peopled by officials who make their decisions based on their own personal preferences rather than the rule of law.
It is natural that this portrayal of the Court as illegitimate and scornful of the rule of law is reaching its zenith over a controversy centered around abortion. Because of the high personal stakes for many people, as well as abortion’s position as a central battleground in the increasingly omnipresent culture war, people are disproportionately passionate about the issue — and do not even realize that their passion is completely inappropriate and misplaced in the context of judicial decisionmaking, which is supposed to be about interpreting law, not making it.
I’ll talk first about the intense passion on display in the current discussion about abortion, centering on the home protests, followed by an explanation of why they are inappropriate and even unlawful. Then I’ll segue into a discussion of institutions, and how they have been harmed both by the behavior of the officials who populate them and by the critics who too often exaggerate their claims. At that point I will circle back to the importance of the leak, and the reasons it strikes me as a danger to our confidence in the rule of law.
The Public Passion Aroused By Abortion
Let’s first talk about the passion that abortion inspires. Abortion is not unique in inspiring passion, of course. Many culture war issues do, such as gay marriage (a few years ago), trans rights issues (today), and racial politics issues (always and forever). As the culture war has intensified and has become the be-all and end-all of our politics, all culture warriors believe they must intensify their tactics to match the increasingly nasty and ruthless tactics of the other side.
Of course, everyone reading this knows that their own side is namby-pamby, disorganized, and dithering, while the other side is organized and utterly ruthless in its tactics. Why, with the way the other side behaves, what choice does your side have but to get down in the mud and fight dirty?
Many of you are nodding your head, even though some of you are on the left and some of you are on the right. The more extreme members of both fringes are dead convinced that it’s high time their own side fought with the unity and viciousness heretofore uniquely displayed by the other side. That neither side understands that there are mirror-image players on the other side who think exactly the same as they do, but with all the jerseys switched, is a testament to how little the two sides talk to one another or follow the same news sources.
And so we see the insanity increasing day by day. In a case of fighting fire with (literal) fire, there were Molotov cocktails thrown into a building occupied by a pro-life organization over a recent weekend:
At least one person threw Molotov cocktails at a pro-life organization's building in Keizer Sunday night.
Police said someone unsuccessfully tried to break a window at the Oregon Right to Life building off River Road North around 10:40 p.m. Then they lit two Molotov cocktails and threw them at the brick building, causing a small fire.
The message left:
We’ve seen protests at Roberts’s house and Kavanaugh’s. Last Monday night, a week ago, protesters marched to Alito’s house, and the rhetoric was alarming:
It Is Inappropriate to Pressure Judges: They Are Not Lawmakers
The inappropriateness of demonstrating at anyone’s home ought to be obvious to any decent person, but what many non-lawyers don’t realize is that it is especially inappropriate as a way to try to affect judicial proceedings. Judges are not there to make law, folks. They are there to interpret it.
Justice Scalia in his dissent in Webster v. Reproductive Health Svcs., 492 U.S. 490 (1989) spoke to this issue. Webster was a case in which the Court issued a narrow opinion upholding certain regulations without addressing whether Roe should be overturned; Scalia wanted the Court to tackle that latter question. In arguing for a broader holding, Scalia argued that the Court’s continuing to arrogate to itself questions regarding the validity of abortion regulations ensured that the issue would cause the public to continue to view the Supreme Court as a legislative entity amenable to public pressure:
Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today.
In truth, I am as distressed as the Court is — and expressed my distress several years ago — about the “political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," which turns out to be nothing but philosophical predilection and moral intuition. All manner of "liberties," the Court tells us, inhere in the Constitution and are enforceable by this Court — not just those mentioned in the text or established in the traditions of our society. Why even the Ninth Amendment — which says only that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people" — is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted at-rights, definable and enforceable by us, through "reasoned judgment."
What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here — reading text and discerning our society's traditional understanding of that text — the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text; if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school — maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.
This is a long and elegant way of saying something very simple: constitutionalizing abortion rights makes the judiciary do the legislature’s work, and causes the people to think it is proper to pressure the courts, as a way of letting their voices be heard. But it is improper to do that to try to influence judges involved in a judicial proceeding, because judges are supposed to make judgments according to the law, not according to public sentiment as loudly and obxoniously expressed by people in Birkenstocks wielding bullhorns. Indeed, if you take matters so far as to protest at a justice’s home to try to influence that justice’s vote, your actions may be worse than inappropriate. They may also be illegal.
In Fact, Pressuring Judges at Their Homes (Or Even Their Courthouses) Can Be Illegal
In fact, there is a law (18 U.S.C. § 1507) against picketing or parading in or near a court building or residence of a judge (or juror, witness, or court officer) with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty. Any of these people at a justice’s house trying to influence the justices is actually breaking federal law. The governors of Maryland and Virginia have urged Merrick Garland to enforce this law, and a surprising source of agreement emerged in the form of an editorial from the Washington Post calling the provisions of the law “limited and justifiable restraints on where and how people exercise the right to assembly” and urging that “[c]itizens should voluntarily abide by them, in letter and spirit. If not, the relevant governments should take appropriate action.”
Some people argue that it would be difficult to prove intent in these cases. Would it? It is not necessary to show an intent to threaten judges, or to obstruct or impede them in their work. Even picketing with the intent to influence a judge is illegal if done near their home. (The definition of “near” would certainly be a bone of contention, but these folks are right outside the justices’ houses within earshot and line of sight of any of the occupants, including the justices’ children.) With all the video we’ve been seeing, is evidence of an intent to influence so elusive? Let’s take a look.
Here’s a video of protesters practicing a “keep abortion safe and legal” chant as they make their way to Justice Alito’s home:
Is their intent to influence the outcome really so unclear? If they were standing outside a juror's house during a high-profile trial chanting "CONVICT THE DEFENDANT!" would it really be super-difficult to discern whether they were trying to influence that juror's decision? Do we all of a sudden get really stupid and lose all common sense when the people are protesting an abortion decision rather than a criminal defendant? More:
“WHAT DO WE WANT? JUSTICE! WHEN DO WE WANT IT? NOW!”
… BUT IT'S A MYSTERY WHETHER WE ARE INTENDING TO INFLUENCE ANY JUSTICES!
I say it’s not a big mystery. I have prosecuted dozens of murder cases and I understand how to prove intent in a criminal case. If my results are any indication, proving intent based on behavior is not as hard as some defense attorneys would have you believe.
And the law appears to be constitutional, according to this analysis by renowned First Amendment expert Eugene Volokh. As Prof. Volokh observes:
A similar provision focused just on picketing outside courts (equivalent to subsection 3 above) was upheld in Cox v. Louisiana (1965); and the logic of that decision would apply equally to residential picketing (subsection 4 above).
Prof. Volokh notes that a ban on all picketing at the Supreme Court was ruled unconstitutional in another case — but, he notes, that case involved a statute that was "‘not limited to expressive activities that are intended to interfere with, obstruct, or impede the administration of justice,’ as Justice Marshall's separate opinion noted.” Prof. Volokh’s post has a long quote from Cox that is gold all the way through and I suggest you click through and read it all. I’ll just give some choice excerpts here:
Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. . . . ]M]ob law is the very antithesis of due process. 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. A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State's interest in assuring justice under law.
Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute—picketing and parading—is subject to regulation even though intertwined with expression and association…..
. . .
[A]t the very least, a group of demonstrators parading and picketing before a courthouse where a criminal charge is pending, in protest against the arrest of those charged, may be presumed to intend to influence judges, jurors, witnesses or court officials.
Similarly, a group of demonstrators parading and picketing before a justice’s house while an appeal is pending, in protest of the expected outcome of the appeal, may be presumed to intend to influence the justice. It’s just common sense. Don’t let the defense attorneys try to snow you on this.
Lack of faith in institutions
But I have strayed a bit from my main topic: institutions, our lack of faith in them, and how the protests and leaks hurt them. Let me now tackle that head on.