Republicans hit Democrats over Roe protests at justices' homes, calling them 'mob rule'

A leaked Supreme Court decision drove protesters to justices' homes. Congress is trying to pass a law to provide security for justices' families.

Bart Jansen
USA TODAY
  • Protests erupted at the Supreme Court and homes of justices after draft abortion ruling leaked.
  • The protests come at a time when threats against judges nearly quadrupled in five years.
  • Biden fine with peaceful demonstrations, but lawmakers blast protests outside homes.

WASHINGTON – The furor over a leaked Supreme Court draft opinion that would overturn the landmark abortion decision Roe v. Wade caused another political uproar days later when protesters took the unprecedented step of marching to justices' houses holding signs and chanting. 

Republicans argued the protests threatened “mob rule” and were potentially illegal by aiming to influence the justices. Some Democrats have cheered the protests, but others condemned vigils held outside justices’ homes as “outrageous” and no way to plead the case.

Sen. Ted Cruz, R-Texas, compared the protests to the Jan. 6 riot at the U.S. Capitol. Sen. Susan Collins, R-Maine, called police about a chalk message on a sidewalk near her Bangor home that urged her to back legislation to codify Roe v. Wade.

The protests outside the justices' homes in the Washington, D.C., area sparked tighter security and threatened the judicial branch with the same heightened polarization that is roiling Congress and the White House. They provoked a backlash from Republicans, put some Democrats on the defensive and worried experts who said the leak already threatened the legitimacy of the court by revealing how decisions are crafted and changed. 

Demonstrators march to the house of Supreme Court Justice Samuel Alito in Alexandria, Virginia, on Monday.

While the political right has fought for decades to overturn Roe v. Wade, legal experts said the political left reacted to the unique opportunity of a leaked draft to try to alter the outcome.

“I've spent a great deal of my career studying the history of the Supreme Court, and I can't recall coming across any instance of protesters targeting justices’ homes in response to a court ruling,” said Christopher Schmidt, a law professor at Chicago-Kent College of Law and co-director of the Institute on the Supreme Court of the United States. “Compared to what happened before, the current situation is just more intense, more focused on the role of individual justices.”

The protests come as threats against the judiciary have increased “dramatically” in recent years, tracking a growing hostility in the country’s political discourse, said Donald Washington, who headed the U.S. Marshals Service from 2019 to 2021.

“The way people talk to each other is not just rude or crude, but it can be assaultive,” Washington said. “The communications channels we have now serve to incite people. Our political and civil leadership have not risen to the occasion to address these behaviors. People have a general comfort in doing things now that we would not have thought about doing years ago.”

Protests erupt after draft opinion leaks

Protests erupted after Politico published Justice Samuel Alito's draft opinion last week.

Capitol Police temporarily closed the roads around the court and erected an 8-foot fence around the Supreme Court. The fence resembles the one that surrounded the Capitol across the street for months last year after a mob ransacked the building Jan. 6, 2021.

Protesters have been holding vigils outside the houses of the five Republican-appointed justices who supported Alito’s draft and Chief Justice John Roberts. Virginia Gov. Glenn Youngkin announced Monday that state police and Fairfax County police would help bolster security around justices’ homes.

More protests were scheduled at least through the weekend.

On Wednesday, the group Ruth Sent Us planned protests outside the homes of Roberts, Alito and justices Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch.

On Friday, the group Fridays for Future D.C. plans a rally at the Supreme Court.

On Saturday, groups including Planned Parenthood Action Fund, Women’s March, MoveOn, UltraViolet and Equality Florida plan a rally and march in Washington, D.C. ShutDownDC plans a candlelight vigil later in the day in Chevy Chase, Maryland, outside the homes of Roberts and Kavanaugh.

Jen Psaki, the White House press secretary, tweeted that President Joe Biden supported peaceful protests but not violence, threats or vandalism. She said Tuesday that passions are running high and people fear for their health care.

"To be very clear, the protests outside of judges' homes have not turned violent," Psaki said. "Just because people are passionate, it does not mean they are violent."

Pro-choice demonstrators march to the house of Supreme Court Justice Samuel Alito in Alexandria, Virginia, on Monday. The Senate passed a bill Monday to expand security protection to family members of Supreme Court justices.

Threats against judges grow

Arguments about Supreme Court decisions are often turbulent. But abortion has always been a contentious debate, and threats have gotten more personal – and sometimes violent – as the country’s politics have become more polarized in recent years.

One exception to peaceful protests came in 1985, when somebody shot through Justice Harry Blackmun’s apartment window in Arlington, Virginia. Blackmun and his wife were home at the time, but they were not injured. He began receiving threats after writing the 1973 Roe v. Wade decision.

Though the Supreme Court has its own police force under the marshal of the court, the U.S. Marshals Service provides security for justices outside Washington. The service investigated skyrocketing threats against all federal judges in the past five years, which grew from 363 in fiscal year 2017 to 1,343 in fiscal year 2021.

Washington said the volume of menacing communications had required deputy marshals in districts across the country to assess the risks.

“There is a rising tide of threats against the judiciary,” Washington said.

A touchstone date was July 19, 2020, when a gunman attacked U.S. District Judge Esther Salas’ family at her home in New Jersey, killing her son, Daniel, and gravely injuring her husband, Mark.

The Judicial Conference of the United States sounded the alarm for more funding because of the growth of violence and property damage on and off courthouse grounds after the Salas family shooting.

“The number of security incidents are increasing and the threat environment is worsening,” John Lungstrum, head of the conference’s budget committee, said in a letter to Senate leaders in August. “The continued existence of these threats and vulnerabilities poses serious risks not just to specific judges, court personnel, or facilities, but also to the effective administration of justice in this country.”

Protesters gather outside the home of Supreme Court Justice Samuel Alito in Alexandria, Va.

Protests grow more intense

Justices have faced protests in the past, but usually tamer and at a distance.

The late Justice Antonin Scalia’s speeches at colleges routinely sparked protests. The John Birch Society advertised on billboards, bumper stickers and a student essay contest urging the impeachment of then-Chief Justice Earl Warren over desegregation.

In recent years, protests have grown more organized – and vocal.

After the Senate confirmed Kavanaugh’s nomination in 2018, protesters outside the Supreme Court pushed past police and pounded on the court’s doors.

When Associate Justice Amy Coney Barrett was nominated in 2020, the Marshals Service immediately provided round-the-clock protective service dubbed “Operation Fighting Irish” in Washington and her home in South Bend, Indiana. Security was provided for nine people, including her husband and seven children. The service reported no indication of adversarial activity.

The Senate unanimously approved legislation Monday to extend court security to the immediate family of justices or officers of the court “if the Marshal determines such protection is necessary.” The bill now heads to the House.

“Threats to the physical safety of Supreme Court Justices and their families are disgraceful, and attempts to intimidate and influence the independence of our judiciary cannot be tolerated,” said Sen. John Cornyn, R-Texas, who introduced the bill.

Nikki Tran of Washington, holds up a sign with pictures of Supreme Court Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, Amy Coney Barrett, and Neil Gorsuch, as demonstrators protest outside of the U.S. Supreme Court, Tuesday, May 3, 2022, in Washington. Protesters have been demonstrating on some justices' front lawns in recent days.

Abortion stokes partisan divide

Court battles have become increasingly political.

On the day the Supreme Court heard a controversial abortion case in 2020, Senate Majority Leader Chuck Schumer rallied a crowd on the courthouse steps with incendiary rhetoric targeting Gorsuch and Kavanaugh.

“You have released the whirlwind and you will pay the price,” said Schumer, D-N.Y. “You will not know what hit you if you go forward with these awful decisions.”

Roberts, the chief justice, issued a rare rebuke that day.

“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said in a statement. “All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

More:The Supreme Court has overruled itself on segregation and saluting the flag. Will Roe be next?

Last week, the day after Alito’s draft decision leaked, Sen. Elizabeth Warren, D-Mass., spoke emphatically at another rally on the courthouse steps.

“I am angry,” she said. “I am angry because an extremist United States Supreme Court thinks that they can impose their extremist views on all of the women of this country – and they are wrong.”

Senate Minority Leader Mitch McConnell, R-Ky., criticized Schumer on Monday, claiming he spurred a crowd to harass and intimidate justices. In arguing the protests could be illegal, McConnell cited a federal statute used to prosecute Capitol rioters that forbids impeding the administration of justice by picketing or parading near a court building or judge’s residence with the intent of influencing the judge.

“Trying to scare federal judges into ruling a certain way is far outside the bounds of First Amendment speech or protest,” McConnell said. “It is an attempt to replace the rule of law with the rule of mobs.”

Ted Cruz compares protests to Jan. 6

Cruz told Fox News on Monday that the protests at justices’ homes are a replay of the 2020 Black Lives Matter protests and that radicals are inviting violence directed at the judiciary and the rule of law. Cruz criticized Democrats and media outlets for the "slander" of tens of thousands of protesters on Jan. 6, 2021, while spurring the Supreme Court protests.

“These thugs have no business at the private homes of any government officials, these Supreme Court justices or anyone else,” Cruz said. “And yet, in this instance, they are not willing to call off their goons even now.”

Nearly 800 people were charged criminally in the Jan. 6 Capitol attack. A mob of then-President Donald Trump’s supporters ransacked the building, injured 140 police officers and temporarily halted the counting of Electoral College votes.

Twitter scribes ridiculed Cruz for comparing the peaceful demonstrations outside homes to the Jan. 6 riot. “Ted Cruz ran for his life on January 6th,” Chris Hahn, a former Schumer aide, said in a tweet. “I’m not a fan of protesting at private homes, however, I didn’t see any bear spray, guns or zip ties at the Choice Marches this week.”

Collins called police Saturday after finding a chalk message on the sidewalk outside her Bangor home urging her to support legislation to codify the right to abortion called the Women's Health Protection Act.

“Susie, please, Mainers want WHPA – vote yes, clean up your mess,” the message said.

In response to the message, Collins’ office said that because she periodically gets threatening letters and calls, Capitol Police have told her to notify local police “when there is activity directed at her around her home.”

Collins has been criticized for voting to confirm justices who support overturning Roe v. Wade despite her support for that precedent. She said after the draft leaked that it was “completely inconsistent” with what Gorsuch and Kavanaugh said in their confirmation hearings and meetings in her office but that the decision and reasoning won’t be known until the official opinion is announced.

Collins' office released a threatening letter she received that said “the angel of death is about to visit your house” and “you will pay a high price for your treasonous acts,” as well as a threatening voicemail.  

The protest group ShutDownDC tweeted Wednesday that the chalk had been washed off Collins’ sidewalk, so they replaced the messages with more. The group also taunted her in a tweet, saying “hope Susan Collins doesn’t call the cops.”

Schumer set up a procedural vote Wednesday on legislation to codify abortion rights, which failed on a 49-51 vote.

"This is as real and as high-stakes as it gets," Schumer said Tuesday. "Senate Republicans will no longer be able to hide from the horror they’ve unleashed upon women in America."

The selection of justices has become sharply partisan in recent years.

Republicans rail against Democrats blocking the nomination of Robert Bork to the Supreme Court in 1987, when then-Sen. Joe Biden headed the Judiciary Committee.

Democrats complain that Republicans blocked the nomination of Merrick Garland for nearly a year after Scalia’s death in February 2016 to hold a seat open for a GOP nominee, Gorsuch. Gorsuch was followed by the contentious nomination of Kavanaugh and the brisk consideration of Barrett before Trump’s term ended.

“My concern is that the Supreme Court is becoming more and more politicized,” said Sen. Patrick Leahy of Vermont, the longest-serving Democrat in the Senate.

Carolyn Shapiro, associate professor of law and co-director of the Institute on the Supreme Court of the United States, said that while partisans on the right have sought to overturn Roe v. Wade for nearly 50 years, partisans on the left see the unique leak of a draft opinion as a chance to change the ruling.

“People have a window into the process and have a reason therefore to believe they can influence the outcome,” Shapiro said. “We don’t normally see that.”

Demonstrators show their support for Justice Samuel Alito outside his home, background, on Thursday, May 5, 2022, in Alexandria, Va. A leaked draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide.

Lawmakers of both parties condemn protests at homes

The protests outside justices’ homes struck a nerve among senators of both parties.

Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, called the “walk-by” of houses “disgraceful.”

“This seems to be nothing more than an appalling attempt to intimidate the justices,” Grassley said.

Sen. Mike Lee, R-Utah, urged his colleagues to condemn the actions he said were meant to threaten, intimidate and harass the justices.

“If you show up where someone sleeps and raises children, that’s an implicit threat of physical violence,” Lee said. “We deserve better than this.”

The committee chairman, Sen. Dick Durbin, D-Ill., agreed that protesting outside someone’s home – as has happened at his house – is “demeaning and adolescent and not convincing at all when you’re trying plead your case by doing something that outrageous.”

“There is no room for mob action, intimidation or any personal threats against a public official, period,” Durbin said. “Whether it involves their home or otherwise, it is out of line.”

Contributing: Kevin Johnson