The leak of a draft Supreme Court opinion to overturn abortion rights spelled out in Roe v. Wade sent shock waves throughout the nation, leading to protests in Washington, D.C., and in front of the homes of several conservative justices, who have indicated they would support the preliminary decision.
The pro-abortion crowds that have gathered outside the justices’s homes in recent days appeared to be peaceful in nature—though they drew condemnation from high-ranking Republican and Democratic lawmakers alike who’ve raised concern about the jurists’s safety. In response to the public commotion surrounding the leaked opinion, the U.S. Senate swiftly passed a law expanding protection and security to the justices’s families, CNN reports.
Sidewalks, parks, and other public venues are traditionally thought of as “public forums,” capable of hosting political speech and debate, says Claudia Haupt, associate professor of law and political science at Northeastern. But while the First Amendment guarantees the right to peaceful assembly, so-called “time, place, and manner” restrictions have been enacted by local governments across the country and upheld by the courts, Haupt says.
Such restrictions can delimit speech in various places, such as residential neighborhoods, so long as they do not reference the specific content of the speech.
“What you can do is pass an ordinance that says ‘No protesting outside of residential homes,’” Haupt says. “What you can’t do is pass an ordinance that says, ‘No protesting specifically about [Dobbs v. Jackson Women’s Health Organization], for example, outside of [Supreme Court Justice Brett] Kavanaugh’s home.’”
Municipalities can pass rules that broadly prohibit protesting outside people’s homes, but not rules that prohibit protesting about specific topics or issues, Haupt says.
But protests directed at members of the judiciary are subject to another layer of federal oversight. A federal statute prohibits “picketing or parading” 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.” Violation of this law can lead to a fine or imprisonment for less than a year, or both. The Department of Justice has been mute on the question of whether the protests outside of the Montgomery County homes of Chief Justice John G. Roberts, Jr. and Kavanaugh amount to “obstruction of justice,” according to the New York Post.
Public pressure has been mounting in the days since Justice Samuel Alito’s draft opinion, which outlined a full rebuke of the 1973 decision, was leaked to the press. Justices Clarence Thomas, Neil Gorsuch, Kavanaugh, and Amy Coney Barrett also voted in that February conference to dismantle Roe, according to POLITICO, the publication that first obtained the draft decision.
The rash of protests across the nation following the draft’s release by POLITICO may indicate that the potential decision is out of line with public opinion, Haupt says.
“There’s a long conversation in political science about whether, and to what extent, the courts follow public opinion,” Haupt says. “We know what the polling is on Roe: That there has been a consistent majority of people who favor upholding Roe. Given that what they [the Supreme Court] could do, which is coming to the public’s attention now, and which is so outside of mainstream opinion, many might think that this is not the time to be civil about the role of the courts in the political system.”
Additionally, the Supreme Court relies on public support for its legitimacy, says Dan Urman, director of the Law and Public Policy Minor at Northeastern, who teaches courses on the Supreme Court. Urman cites Federalist No. 78, written by Alexander Hamilton, which states that the “judiciary has neither force nor will; merely judgment.”
But, Urman says, the courts rely on the executive branch to carry out its judgements, meaning they can become tangled up in politics in often complicated ways.
“Therefore, courts need the country to think they are legitimate, both in their processes and outcomes,” Urman says.
For media inquiries, please contact firstname.lastname@example.org.