Notice And Comment: Protesting At Justices’ Homes

Is it fair game to protest at judicial residences, or is this a bridge too far?

Abortion-rights advocates protesting outside the home of Justice Samuel Alito on May 9. (Photo by Kent Nishimura / Los Angeles Times via Getty Images.)

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The leak of the Supreme Court’s initial draft majority opinion in in Dobbs v. Jackson Women’s Health Organization, an opinion that would overrule Roe v. Wade and send the issue of abortion back to the states, unleashed a torrent of anger on the left. Since then, we’ve seen abortion-rights protests around the country—and outside the homes of Supreme Court justices. Protesters have demonstrated outside the homes of at least four SCOTUS members: Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett.¹

This is a legal newsletter, so let’s start with the legal issue: are such protests legal? It appears that they are not, under federal law as well as the laws of Virginia and Maryland, the two states in which the protests have taken place. The federal statute, 18 U.S.C. § 1507, protects the residence of a “judge, juror, witness, or court officer,” while the Virginia and Maryland laws are broader and protect the home of “any individual” (Virginia) or “a person” (Maryland).

Are the laws criminalizing such protests constitutional? Legal experts and law professors who spoke to Aaron Blake of the Washington Post opined that the federal statute would pass constitutional muster.² As a doctrinal matter, it seems like a classic “time, place, and manner” restriction, which does not discriminate based on the content of speech but simply provides reasonable limits on how protests can be conducted. As a predictive matter, any constitutional challenge to the law would be decided by judges—who I think would be disposed to uphold the restrictions.

Now let’s get to the more challenging issue: are these protests ethical?³

Supporters of these protests, perhaps coming from the perspective of my imaginary Dobbs leaker, cite the importance of what’s at stake: the imminent erasure of constitutional protection for critical reproductive healthcare, protection that has existed under the law for almost half a century. From this point of view, protesting at a justice’s home “makes complete sense,” according to Jamelle Bouie of the New York Times. In fact, one could argue that not only are the protests permissible, but even required: it is essential to voice one’s opposition to such oppression, no matter what the consequences might be.⁴

In response to the argument that the protests are “uncivil,” the protesters dismiss what Rafi Schwartz of Mic refers to as the “civility trap,” arguing that “civility” should be the least of our concerns right now—and that calls for “civility” are often used by the powerful to squelch the dissent of the powerless. In response to the argument that the protests violate the privacy of the justices and their families, the protesters would quote the most-liked comment of the 6,285 (mostly negative) comments on the Washington Post editorial discussing the protests: “We'll stay away from their houses when they stay away from our uteruses.”

The WaPo editorial makes the case against the protests. It argues that they reflect “a disturbing trend in which groups descend on the homes of people they disagree with and attempt to influence their public conduct by making their private lives—and, often, those of their families and neighbors—miserable.” It further contends that these protests attempt to “bring direct public pressure to bear on a decision-making process that must be controlled, evidence-based, and rational, if there is to be any hope of an independent judiciary.”

Professor David Decosimo, a philosopher and ethicist who teaches at Boston University, also argues against protesting at judges’ houses, in a Boston Globe op-ed and on Twitter. He makes two main points:

• The protests “deliberately violat[e] a host of boundaries worth caring about,” by “deliberately target[ing] a person’s family…. Like threatening someone’s child, it wrongs the innocent, treating them as nothing more than means to our ends.”

• “Protesting at a home targets someone as a person rather than as someone fulfilling a role. A judge or politician is a fellow citizen and more fundamentally a fellow human being. Protesting at someone’s home denies this reality. It erases any boundary between a person’s profession and the fullness of their humanity. It reduces that humanity to a partisan role.”

Of course, there’s a rejoinder to Professor Decosimo’s second point: if you’re so concerned about “personhood,” what about the personhood of the millions of pregnant and potentially pregnant people who will be affected by Dobbs?

What do you think of these issues? This is a Notice and Comment post, in which I invite readers of Original Jurisdiction to share their views on a selected issue in the comments. So please opine on the propriety of protests at judicial homes in the comments to this post (which are open to all readers, not just paid subscribers, for this particular story). Thanks!

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1. I’m not sure how these justices were chosen over others (i.e., why protesters have not gone to the homes of Justices Clarence Thomas and Neil Gorsuch, at least based on the news accounts I have read). From the protesters’ perspective, I can understand going to Justice Alito’s house, since he wrote the initial draft majority opinion in Dobbs—but less logical is going to the home of the Chief Justice, since he opposes overruling Roe, per CNN. As for protesting at the homes of Justices Kavanaugh and Barrett, it strikes me as likely to backfire as a strategic matter: both justices are deeply devoted to their families, and showing up to their families’ homes seems more likely to alienate and anger these justices than to persuade or successfully intimidate them.

2. The Virginia statute may have a constitutional problem, as explained by Professor Eugene Volokh (via Advisory Opinions), but the federal statute does not have the same defect.

3. This issue is a good litmus test for whether you’re a liberal or a progressive. My guess is that many liberals oppose the protests—like the members of the Washington Post editorial board, which condemned the protests and argued that “[e]rasing any distinction between the public square and private life is essential to totalitarianism.” Meanwhile, I suspect many progressives support the protests, under the thinking that “everything is violence,” including what the Court is likely to do in Dobbs, ”and so everything is permitted.”

4. My suspicion is that most protesters don’t think their actions will have an effect on the outcome of Dobbs—they don’t think protesting at a home will cause a conservative justice to flip from voting to overrule Roe to voting the other way, nor do they think it will harden a conservative justice’s resolve to overrule Roe. Instead, most protesters view these protests as a necessary expression of dissent—and perhaps some subset of them support the protests as a form of “punishment” for the justices who they think will overrule Roe.