Biden DOJ Behind Failure to Arrest Activists Illegally Protesting at Justices’ Homes, Experts Say

Charles Edward Miller, CC BY-SA 2.0 <https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons

Authorities who allow activists to protest at the homes of the Supreme Court justices in violation of 18 U.S. Code 1507 are doing the bidding of President Joe Biden’s Justice Department, legal and judicial experts told The Daily Signal.

“The U.S. marshals report to the attorney general,” Judicial Crisis Network President Carrie Severino said. “If they are unwilling to enforce the statute, presumably they are toeing the line of [Justice Department] leadership. So the question is, why does [Attorney General] Merrick Garland still refuse to enforce federal law on the books, especially after the attempted assassination of Justice Kavanaugh?”

On Sunday evening, the 50th anniversary of Roe v. Wade, activists with Our Rights DC protested once again at Supreme Court Justice Brett Kavanaugh’s Maryland home. Their demonstrations have been taking place for almost nine months, since the May leak of the draft opinion indicating Roe v. Wade would be overturned.

Many of these protesters have ties to ShutDownDC and Ruth Sent Us, organizations that have posted the addresses of the Supreme Court justices online, offered bounties for sightings of the justices, and called for continued protesting intended to make the justices uncomfortable with overturning Roe v. Wade.

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On Sunday evening, The Daily Signal asked members of the U.S. Marshals (who were stationed between the house and the protesters) why they allowed the demonstrations when 18 U.S. Code 1507 forbids picketing or parading “in or near a building or residence occupied or used by such judge, juror, witness, or court officer” with the intent of intimidating or influencing that person.

Several of the marshals told The Daily Signal that since the activists were not on Kavanaugh’s property, merely the sidewalk, they were not breaking the law. The authorities, who did not share their names, also said that the activists had the right to demonstrate as long as they were within the law.

Experts say that the marshals were likely repeating what they had been told by their supervisors—who report to the Department of Justice.

“The U.S. marshals should stick to doing their jobs, not trying to act like lawyers. They are wrong,” said Hans von Spakovsky, senior legal fellow at The Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies. (The Daily Signal is the news outlet of The Heritage Foundation)

The White House from Washington, DC, Public domain, via Wikimedia Commons

Amy Coney Barrett’s family, including husband Jesse Barrett and their seven children, walk into the Rose Garden before President Donald Trump announces her as his nominee. (Photo: Chip Somodevilla/Getty Images)

“The statute prohibits protests ‘near a building or residence’ used by a federal judge; the fact that the protesters were on the sidewalk is irrelevant,” von Spakovsky said. “They should have been arrested and they should be prosecuted.”

“The marshals’ claim about the First Amendment is also wrong,” von Spakovsky continued. “Their job is to enforce the law and not refuse to enforce it because of their supposed opinion about the constitutionality of the federal law.  And the First Amendment is not an issue here because the point of the statute is to prevent intimidation of judges, prosecutors, and witnesses in the judicial system.”

Charles Stimson, deputy directer of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, predicted that the marshals are “taking their marching orders from main justice.”

“Under 18 U.S.C. § 1507, it is a criminal violation of federal law to picket or parade ‘near a building or residence occupied or used by [a federal] judge, 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,” Stimson said.

“Why else would they be there?” he asked. “To sell Girl Scout cookies?”

The White House, Public domain, via Wikimedia Commons

Supreme Court Justice Brett Kavanaugh embraces his youngest daughter Liza during his ceremonial swearing in in the East Room of the White House on Oct. 8, 2018, in Washington, D.C. (Photo: Chip Somodevilla/Getty Images)

Laws in both Maryland and Virginia also prohibit picketing to disrupt or threaten to disrupt that individual’s “tranquility in his home,” though the Maryland Attorney General’s Office has reportedly disputed the constitutionality of the state’s law.

On Tuesday evening, Republican Virginia Gov. Glenn Youngkin spokesman Christian Martinez reminded The Daily Signal that Youngkin has strongly condemned picketing at the homes of the justices. Local primary authorities are leading the protest response, Martinez said, but Youngkin has directed Virginia State Police to be at the ready and in “constant coordination” with local authorities.

“The Governor remains in regular contact with the justices themselves and holds their safety as an utmost priority,” Martinez added. “Governor Youngkin will continue to push for every resource of federal law enforcement, including the U.S. Marshals, to be involved while the Justices continue to be denied the right to live peacefully in their homes.”

On May 11, 2022, following repeated protesting at Justice Samuel Alito’s home, Youngkin called on the Fairfax County Board of Supervisors to establish an expanded security perimeter around the homes of three Supreme Court justices who live in Fairfax County. Jeffrey McKay, chairman of the board, denied this request on the very same day.

On May 12, 2022, Youngkin and then-Maryland Gov. Larry Hogan together requested that Garland, the U.S. attorney general, enforce 18 U.S. Code 1507 as the protests continued.

Acting Assistant Attorney General Peter Hyun responded to the governors in a June 8 letter—the same day that authorities arrested Nicholas Roske and charged him with attempted murder of a Supreme Court justice (Roske notably said that he decided to kill Kavanaugh after finding the justice’s address posted on the internet).

The DOJ official refused to discuss whether the protesters had broken 18 U.S. Code 1507, citing “longstanding policy and practice of the Department.” The DOJ did not enforce the law against the protesters then, and it has not now.

Stimson characterized the DOJ response to the governors as “perfunctory.”

“It hides behind the standard potential ongoing investigation blather, when a third grade child could try these cases as the evidence is open and notorious,” Stimson said.

On June 15, Youngkin proposed a budget amendment making it a felony to picket or demonstrate in or near a court or residence “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing or intimidating in the discharge of his or her duty any judge, juror, witness, court officer, or court employee, or any immediate family member of such individuals.”

“I am asking that the General Assembly help keep our state and federal judges safe,” Youngkin said in a statement when he announced the budget amendment. But that budget amendment ultimately failed when some Republican members of the Virginia House of Delegates voted against it.

On July 2, the Supreme Court’s chief security officer, Gail Curley, asked top Maryland and Virginia officials to enforce their laws protecting the justices. Since then, law enforcement have continued to stand outside the justices’ homes as the protests take place.

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The Department of Justice has not responded to requests for comment from The Daily Signal on this point or others related to the protesting at the homes of the justices. Meanwhile, it has focused efforts on prosecuting pro-life activists with the Freedom of Access to Clinic Entrances Act.

If Kavanaugh’s home were an abortion clinic in California, Stimson speculated, and “pro-lifers were agitating like these goons were, do you think for one second that law enforcement would try to hide behind this ‘in or near’ fig leaf? Of course not.”

The marshals who spoke with The Daily Signal also expressed the belief that the judges in Washington, D.C., Virginia, and Maryland would toss out any cases brought to them involving the leftist activists who have been protesting at the homes of the Supreme Court justices since the May Dobbs v. Jackson Women’s Health Organization leak.

That unprecedented leak sparked protests throughout the country, attacks on scores of pro-life centers and faith-based institutions nationwide, and even an assassination attempt against Kavanaugh. Alito said the leak made the justices “targets for assassination.”

“It was a shock because nothing like that had happened in the past,” Alito said of the leak in October at The Heritage Foundation. “So it certainly changed the atmosphere at the court for the remainder of last term.”

“The leak also made those of us who were thought to be in the majority, in support of overruling Roe and Casey, targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us,” he added.

This article originally appeared in the DailySignal.