The Supreme Court Marshal Calls on States To Crackdown on Protesters

In a rare move, Supreme Court Marshal Gail Curley has sent letters to Maryland Gov. Larry Hogan, Montgomery County Executive Marc Elrich, and Virginia Gov. Glenn Youngkin demanding that authorities put an end to picketing and “threatening activity” outside the homes of SCOTUS justices. The letter seeks to use state laws to achieve what the Justice Department has clearly rejected under federal law. If the letter prompts arrests, we could see a major free speech challenge in the courts. The timing of the letter, however, is particularly interesting and may reflect a recognition of the limits of the federal law.

Like most Americans, I have denounced these protests targeting the homes of justices as excessive and reckless (though one law professor actually suggested that such protests could be more aggressive). However, I have also questioned the use of a federal law to arrest protesters.

Under a federal law, 18 U.S.C. 1507, any individual who “pickets or parades” 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” near a U.S. court or “near a building or residence occupied or used by such judge, juror, witness, or court officer” will be fined or “imprisoned not more than one year, or both.”

I believe that a court would declare the use of the federal law against protesters on public sidewalks to be unconstitutional. There are issues of free speech, assembly, and vagueness that would be likely raised in federal court. Indeed, if you apply the broad interpretation of the law, even protests outside of the Supreme Court building could result in arrests since courthouses are also included.

However, the timing is particularly interesting. After the release of the decision in in Dobbs v. Jackson Women’s Health Organization, I noted that it would be even harder to use this law because the statute refers to “interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge … in the discharge of his duty.” With the release of the decision, there is no chance that the protesters are interfering, impeding, or influencing the decision. Thus, even if the constitutional arguments were rejected, a court could question whether the law can be read as applying to protests generally against the justices for their views.

That is what makes the date so interesting. Dobbs came out on June 24, 2022. One week later, Curley sought enforcement of state laws as an alternative to federal enforcement. It may reflect the view that, even if the law is constitutional to arrest protesters, it would be narrowly construed in light of the fact that Dobbs is now on the books. Since it was clear for weeks that the Justice Department would not enforce the law to arrest protesters outside of these homes, the timing of the letter could reflect a dwindling likelihood of enforcement in light of the end of the term.

Curley wrote Gov. Hogan: “I would respectfully request that you direct the Maryland State Police to enforce Maryland and Montgomery County laws that squarely prohibit picketing at the homes of Supreme Court Justices who reside in Maryland.”

Both the Maryland and Virginia governors responded by calling on Attorney General Merrick Garland to use his authority under federal law to stop the protesters.

The state laws, however, would still face the same constitutional challenges. While noise and other non-content-based regulations can be enforced, barring any protests that do not block streets could be difficult to maintain despite some precedent favoring the states.

The states can cite Frisby v. Schultz (1988), where the Court upheld a Wisconsin ban on all protests outside of a residential home. Because the law was content neutral, Justice Sandra Day O’Connor ruled that it was permissible. As a free speech advocate, I have always found the 6-3 opinion troubling.

Nevertheless, the Frisby case is not as sweeping as some suggest. Indeed, it is a typical O’Connor decision that leaves nuanced or vague line for states in banning some protests.  Citing its holding in Carey v. Brown (1980), the Court expressly stated that “[o]ur prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood.” It later added that it was not saying that all protests can be barred in residential areas.

“We instead construe the ordinance more narrowly. This narrow reading is supported by the representations of counsel for the town at oral argument, which indicate that the town takes, and will enforce, a limited view of the “picketing” proscribed by the ordinance. Thus, generally speaking, “picketing would be having the picket proceed on a definite course or route in front of a home.” Tr. of Oral Arg. 8. The picket need not be carrying a sign, id., at 14, but in order to fall within the scope of the ordinance the picketing must be directed at a single residence, id., at 9. General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance. Id., at 15. Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited.”

The Maryland law states that a “person or group of persons must not picket in front of or adjacent to any private residence.” Md. Crim. Code § 3-904(c). Montgomery County also has an ordinance barring protests in front of or adjacent to any private residence.” Montgomery Cnty. Code 32-23a.

The problem with these laws is that, even if you adopt an extreme view of the Frisby (which the Court itself rejected), they sweep too broadly.  Most areas  of picketing contain a mix of offices and residences. Indeed, the move in most cities is to guarantee such multi-use zoning to avoid dead zones or high crime in cities.  Accordingly, most protests could face such enforcement as protesters march in major cities. That creates the danger of selective enforcement based on the content of the speech.

In these protests, many of the protesters continue to walk pass the homes as referenced in Frisby‘s narrowing language.

There is an interesting question of whether Curley consulted with Chief Justice John Roberts. There is usually considerable coordination with the Chief Justice, but the approval of Roberts could cause later ethical issues if a challenge comes to the Court on appeal. If Roberts green lighted the letters, he is directly involved in the decision and effectively endorsed the underlying interpretation (and use) of the state laws. In such a case, he should recuse himself from any appeal.

Roberts would not be the only one with conflict issues. All of the justices would be beneficiaries of such enforcement, but the six conservative justices are the subject of these specific protests. They could effectively resolve such conflicts by simply denying review in any challenge and allow the lower courts to be the final word on the constitutionality of such enforcement.

Yet, some justices might not be pleased by the Marshal essentially advancing such a legal claim in calling for this crackdown on protesters. By sending the letter, Curley is speaking as a high-ranking official in the Judicial Branch. She is clearly not just encouraging the use of these laws, but implicitly saying that these laws can be used in this way to stop any further protests at these homes.

What is striking about this effort is that Curley has reportedly not reached out to FBI for assistance in catching the leaker of the Dobbs decision. The Supreme Court is just a few blocks away from the leading expert agency in the world on computer and forensic investigations. Yet, Roberts and Curley have kept this investigation confined to their relatively small and inexperienced staff. That has left many of us perplexed since this is one of the greatest attacks on the internal operations and integrity of the Court in its history.

The letter could well prompt a crackdown on the protesters. We could then watch these constitutional issues play out in court soon.

Here is the Maryland letter: July-1-2022-letter-to-Hon.-Larry-Hogan

NB: This blog has been updated to add more legal analysis and to include the language of the underlying state laws.

77 thoughts on “The Supreme Court Marshal Calls on States To Crackdown on Protesters”

  1. The only reason the Founding Fathers left specifics like intimidation of Justices out is they new the limit of the law and had enough world experience to see ax handles as Plan B.
    IOW, we are only as civilized as we can be until one side or the other has had enough.
    In many ways I see continued anger leaping the ability of the Constitution to control it. We are at a “Monty Python Moment” where we cannot enforce what really needs to be enforced because, “Well, we just can’t”.
    So ax handles it is.

  2. Can the Supreme Court reverse one of its own rulings if they forgot about something?

  3. I am guessing that even people, like myself, that are almost free speech absolutists would almost vote to ban Anonymous and JEffSilber from commenting 100 times on each damn story.

    Jeff is at least polite and seems nice, albeit disgustingly obsessed, while one particular Anonymous is just a punk with a keyboard.

    Anonymous has me again beseeching the powers that be, Turley, to cease allowing the use of Anonymous because although the idea of anonymity is great, notice I am anonymous with my incredibly clever name (if you are a hockey fan of a certain age), but allowing the use of “Anonymous” by anyone and everyone makes it hard to ignore the one idiot’s moronic, nasty and partisan comments. Which begs the question: why doesn’t Anonymous the Idiot pick his own moniker?

    1. Have you considered emailing him? He clearly doesn’t read most comments.

  4. The leftist thugs and their agents in the Democrat’s party would send out Merrick Garland’s goons tomorrow to arrest, handcuff and frog march the 6 conservative Justices tomorrow if they thought they could get away with it. Actually I don’t doubt Garland doing this and having CNN on hand to save it for posterity. Oh, it would happen at around 6:00 AM as is their style.

  5. Eugene Volokh:

    Some people argue that the Supreme Court’s objection to the picketing of Justices’ homes about abortion is inconsistent with the Court’s upholding the right to picket outside abortion clinics, or stressing the right to protest more broadly.

    Bans on residential picketing have been particularly useful to, among other people, abortion providers. Frisby v. Schultz (1988), upheld a content-neutral ban on targeted picketing that was prompted by picketing “outside the … residence of a doctor who apparently performs abortions.” That opinion was written by Justice O’Connor, and joined by Chief Justice Rehnquist and Justices Blackmun, Kennedy, and Scalia; Justice White concurred as to the principle. Justices Brennan, Marshall, and Stevens dissented.

  6. Like most Americans, I have denounced these protests targeting the homes of justices as excessive and reckless

    It is apparent to the majority of Americans that “targeting the homes of Justice as excessive and reckless” is just a mere example of the master plan to destroy America by a President in name only, or as David Axelrod stated, “There Is This Sense That Things Are Out Of Control And Biden Isn’t In Command”

    as if!


    Bloomberg News
    July 3

    Germany’s Union Head Warns of Collapse of Entire Industries

    Top German industries could face collapse because of cuts in the supplies of Russian natural gas, the country’s top union official warned before crisis talks with Chancellor Olaf Scholz starting Monday. “Because of the gas bottlenecks, entire industries are in danger of permanently collapsing: aluminum, glass, the chemical industry,” said Yasmin Fahimi, the head of the German Federation of Trade Unions (DGB), in an interview with the newspaper Bild am Sonntag. “Such a collapse would have massive consequences for the entire economy and jobs in Germany.”

    👆🏽👆🏽👆🏽 Biden did this


    American Fuel & Petrochemical Manufacturers (AFPM) & American Petroleum Institute (API) Letter to Joe Biden

    AFPM President and CEO Chet Thompson and API President and CEO Mike Sommers sent a letter to President Biden responding to recent letters the Administration sent to major U.S. fuel refiners suggesting that these companies, their workforces and facilities throughout the country aren’t doing their part to bring fuel to the market and lower energy costs for consumers. An excerpt from the joint letter, which notes that U.S. refiners are running at a world-leading 94% of capacity

    1. no surprise to Americans. Denial, denial, denial for the Democrats Schutzstaffel.

      June 29, 2022

      Americans remain deeply pessimistic about the state of the country and the economy. A view that is reflected in President Joe Biden’s approval rating, which continues to hover around 39%. About 9 in 10 Republicans disapprove, along with nearly three in 10 Democrats.

      The national dissatisfaction is bipartisan. Most Americans, 85%, say the country is headed in the wrong direction. A majority of Republicans have been unhappy with the direction of the country since Biden’s election. Democrats had been positive about how things were going, but now 78% say the country is headed in the wrong direction.

      1. To fix the economy the democrats will re elect The Big Guy. I want to put the fire out so let’s throw some gasoline on it.

  7. If the protests are quiet and respectful then the should be allowed. The problem is that the protests are not quiet and respectful. Therefore, disturbance of the peace laws can be applied. The protesters would be much more effective if they would lock arms and march singing we shall overcome. This was the approach advocated by Martin Luther King Jr. Sadly the protestors in front of the Judges’ houses have no such moral compass.

    1. ThinkItThrough,
      I have read more than a few articles of protesters threatening the Justices neighbor’s whom asked if they could tone it down, as their children were scared.
      One protester responded with, “F–k your child!”

  8. Ralph says:

    “at some point we are entitled to our privacy”

    Are we? In an ironic twist of fate, the Supreme Court says that there is no inherent right of privacy in the Constitution.

  9. Now that the Decision is final….has been issued….and until a related Case comes to the Court….what justification do the Protesters have to carry on with their protests outside the homes of the Justices?

    Is the Professor saying that if Svelaz, Anonymous the Stupid, Natacha, and that bunch decided they did not get enough bandwidth here they should be free to parade up and down the Professor’s streets, sidewalks and neighborhood?

    There must be some consideration of the rights of those being protested by the protestors in all of this.

    Rights work like a two way street… some point we are entitled to our privacy….and those that wish to deprive us of that should have to present a legal justification for doing that beyond mere damn meanness.

    When the President, Attorney General, US Attorneys all failed to see the Federal Law be faithfully executed in this matter….they lost all credibility and violated their Oaths of Office.

    If the arrests resulted ini Appeals of Convictions that worked to the Supreme Court…..I wonder how the Court would handle that situation.

    Yet again we see the need for a Special Counsel Investigation…this time of the the AG and DOJ to include the US Attorneys for the jurisdictions the Protests were occurring.

    1. It’s surprising that you’re unable to figure out the purpose of protesting after a ruling has been published.

      “There must be some consideration of the rights of those being protested by the protestors in all of this”

      You want the Justices’ rights considered despite them being happy to deny the rights of pregnant women? I might take your comment more seriously if you took the rights of pregnant women more seriously.

      1. Rights are not denied by reversing Roe. Maybe it should be said the decision upheld the right to life and state sovereignty.

        You want a new right, the right to kill, while federalizing rights that belong to the state.

        1. You think that frozen embryos have a right to life?

          The US is a constitutional democracy. We want SCOTUS to uphold the Constitution.

          “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

          “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

          “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

          “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

          If you’re now going to complain that the word “abortion” doesn’t appear, lots of words don’t appear in the Constitution. For example, “privacy” doesn’t appear, but you still have a right to privacy. The phrases “Electoral College” and “congressional districts” do not appear, yet they’re required by the Constitution. The list of words that don’t appear in the Constitution is long, and that does not imply that the Constitution says nothing about the underlying concepts.

          People have a right to bodily autonomy. Women should not be forced into involuntary servitude in service of an embryo. You cannot even be forced to donate blood to save someone’s life, which is extremely simply, safe, and brief, but you think it fine and dandy for a woman to be forced to donate the use of her body for 9 months.

          If you think it constitutional to demand that women give the use of their body over to support an embryo/fetus, then you must have no objection to the state requiring everyone to donate their organs after they’ve died, if they’ve died in circumstances where the organs are usable.

          1. You talk a lot but say little. The decision left the Constitution untouched. Before the time the Constitution was written, abortion was a local issue. Since you want to add something never there, use the amendment process.

            1. “The decision left the Constitution untouched.”

              BS. Dobbs butchered the Constitution.

              A proper view of our Constitution focuses on the following question: Does the Constitution authorize the government to use its police powers to control a woman’s body, medical choices, future? Since the obvious answer in this case is: No! The decision should be: Then any such law, by any government, is unConstitutional.

              The fundamental question in any constitution case is *not*: How does the Constitution limit private action? The key question is: How does the Constitution limit government action?

              When you get wrong the basic function of our Constitution, you cannot claim to be a defender or lover of the Constitution.

    2. When do the DOJ and Garland act? When parents object to their kids being raped or otherwise abused by teachers.

      When doesn’t the DOJ and Garland act? When Supreme Court Justices are intentionally intimidated by crowds of lefties at their homes even when there was an attempt to assassinate one of the judges.

      Lefties are violent and hypocritical. I think these leftist activities might have woken up the judiciary to the violence of the left and might alter decisions in an unexpected manner.

  10. For those who read JT’s piece earlier, I note that he has updated his piece to include more legal analysis and discussion of decisions — perhaps in response to earlier comments by Mark Glennon and Golden Country.

  11. “Both the Maryland and Virginia governors responded by calling on Attorney General Merrick Garland to use his authority under federal law to stop the protesters.”

    Oh that’s good, politician speak at its very best. As George Carlin would note: “We’re addressing the problem by referring it to somebody else.”

  12. You missed the crucial main point.
    The statutes attempt to control JURY TAMPERING, which applies to juries AND non jury trials and appeals.
    Judges can already control speech by banning cameras in the courtroom.
    In this age of social media and FAKE NEWS MEDIA hucksterism, quick assembly for the purpose of influence is the norm.
    Judges in the 3rd co equal part of government have a vested legal interest in NOT HAVING THEIR PROCEDURES AND DELIBERATIONS INTERFERED WITH – just as much as Representatives have an interest in not having their deliberations interfered with as promoted by the January 6 Commission hoax.

    1. Cohn,

      You had me up to “January 6 Commission hoax.”

      After that comment, I dismissed you as a lying Trumpist.

      1. The January 6th commission is nothing more than a trial that is all prosecution and no defense.

        1. Independent Bob says:

          “The January 6th commission is nothing more than a trial that is all prosecution and no defense.”

          Not to worry. Trump will have an opportunity to defend himself in a real trial.

  13. The Democrat county commissioners where the Justices reside in MD and VA are rebuffing the SCOTUS Marshall (see below Richmond Times article), relishing subjecting the Justices to fear and playing hardball politics. We have been seeing these tactics at least since 2016, climaxing in 2020 “Summer of Love”, and escalating today. This from the DNC that wants to drop the 2nd Amendment, mandate useless masks, forced economic lockdowns, COVID passports, COVID vaccines on toddlers and infants, and abortions up until late in the 3rd trimester, with option to decapitating the newborn, all in order to “save lives”.

    Dox the owners and managers of the abortion centers, have people picket and protest them at their homes at night, and see how that goes. We all know: all hades would break loose because of….reasons

    News flash: Today’s Democrats are Nazis replete with their vast network of Schutzstaffel or SS aka ANTIFA, BLM, Janes Revenge, RuthSentUs, Legacy News Media, FBI, DOJ, ad nauseam, ad infinitum.

    The Second Amendment is the only thing standing in the way of Democrats sending their critics to concentration camps. No wonder they want to disarm us.

    High court marshal seeks enforcement of anti-picketing laws

    ……”Earlier this week, for example, 75 protesters loudly picketed at one Justice’s home in Montgomery County for 20-30 minutes in the evening, then proceeded to picket at another Justice’s home for 30 minutes, where the crowd grew to 100, and finally returned to the first Justice’s home to picket for another 20 minutes,” Curley wrote in her letter to Montgomery County Executive Marc Elrich. “This is exactly the kind of conduct that the Maryland and Montgomery County laws prohibit.”

    In her letter to Jeffrey McKay, chairman of the Fairfax County Board of Supervisors, she said one recent protest outside an unspecified justice’s home involved dozens of people chanting, “no privacy for us, no peace for you!”

    Hogan spokesman Michael Ricci said in a statement Saturday that the governor had directed state police to “further review enforcement options that respect the First Amendment and the Constitution.” He also said that “had the marshal taken time to explore the matter,” she would have learned that the constitutionality of the Maryland statute she cited has been questioned by the state Attorney General’s Office.

    Elrich said he had no recording of having received the letter addressed to him and questioned why it was released to the press. He said he would review it and was willing to discuss it with Curley, but defended the job Montgomery County Police have done so far. “In Montgomery County we are following the law that provides security and respects the First Amendment rights of protestors. That is what we do, regardless of the subject of the protests,” he said.

    Youngkin in May pushed for a security perimeter around the homes of justices living in Fairfax County, but McKay rebuffed that request, saying it would infringe on First Amendment protest rights. McKay said Saturday that the county’s position on the issue was “unchanged.”

    “The law cited in the letter is a likely violation of the First Amendment, and a previous court case refused to enforce it. As long as individuals are assembling on public property and not blocking access to private residences, they are permitted to be there,” he said.

  14. Questions before we enter the rabbit holes:
    1. Are not all laws potentially subject to the question of constitutionality before a court?
    2. If a judge (or any citizen) were to request enforcement of any law, does that that constitute a rendering of opinion as to the constitutionality of the law?
    3. If a law has not been judged to be constitutional by a court, does that mean that it cannot be enforced until all potential appeals regarding its constitutionality have been played out?
    4. If a judge has EVER been involved with formulation of a law (prior work as a legislator), represented any party in either defense or prosecution of activity governed by law or worked as an officer executing the law, would that preclude that individual from ever rendering judgement of the constitutionality of said law should they find themselves in that position?
    5. Is a “rare move’ not judged so because the circumstances have not presented themselves before rather than a “recognition of the limits of the federal law”?
    6. Does the DOJ have the authority to ‘reject federal law’?
    7. Does the potential “of a major free speech challenge in the courts” override the duty to execute the law?

    The argument that “With the release of the decision, there is no chance that the protesters are interfering, impeding, or influencing the decision.” is dubious if, for nothing else, its superficiality. Could it not be easily construed that the goal of the protesters is to influence the future actions of the judges? For example, Ms. Pelosi has called for plans to codify Roe v. Wade. Would it be farfetched that such legislation, if passed, may come before the court for judgement as to constitutionality? If so, could not the current ‘protests’ and alleged attempted murder of a justice not be construed as “intent of influencing any judge’ on such potential future cases?

    You mention the distance of the Supreme Court from (presumably) the FBI. The actions of the FBI over the past several years and the current inaction of the DOJ speaks volumes and leaves little room to wonder as to why those agencies were not consulted. Perplexity or naiveté? Either way, justification of the failure to execute the law based on potential constitutional questions down the road is a formula for government paralysis via endless legal rabbit holes. Res ipsa loquitur.

    1. Daniel, I will respond to Question #1. Courts consider only those questions as to which they have subject matter jurisdiction.

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