Here’s what you should know about the law, how it applies to the current circumstances, and whether it’s constitutional.
The law, passed by Congress in 1950, prohibits picketing or parading “with intent to influence a judge, jury, witness, or court official in the dismissal”… “in or near any building housing a court of law.” United States or in or near any building or residence occupied or occupied by any such judge, jury, witness or court official.”
Violators face a fine or imprisonment for up to one year.
Why did Congress enact it?
As the Senate considered the law in 1950, its supporters pointed to picketing taking place outside of a trial of communist sympathizers. The judge’s residence in the case was also picketed, according to the Congressional report on the Senate’s comments on the legislation.
“It is readily apparent that such activities, if continued without restraint, will not only degrade the dignity of our judicial processes, but will ultimately result in an impairment of justice,” said the then-Louisiana Sen. Allen Ellender.
Does it apply to the pro-abortion protesters who have been protesting outside the Houses of Justice?
Republicans now say the demonstrations outside the homes where Supreme Court justices reside are clearly covered.
“These are clearly attempts to bully the court in response to the leaked Dobbs testimony,” Iowa Republican Senator Chuck Grassley said in a Wednesday letter to Garland, referring to the abortion case now before the Supreme Court .
Although the law is usually associated with protests outside courthouses where high-profile trials are held, legal experts said the law could be at least broadly applicable to the current circumstances.
“At first glance, it certainly obscures picketing at or near — in this case it will be near — any residence occupied or used by such a judge,” said Eugene Volokh, a professor of constitutional law at UCLA School of Law.
Since the draft was leaked but the verdict wasn’t passed on, “it seems pretty easy to me to prove that it was done with intent to influence,” Wolokh said.
However, according to Tabatha Abu El-Haj, a professor at Drexel University School of Law, protesting a pending Supreme Court ruling on a highly partisan matter could be something other than intimidating a judge or jury considering a particular person to condemn.
“The application of this law to this situation erases that blurred line between speeches or demonstrations that are truly intended to materially intimidate or undermine a court proceeding,” she said. “It’s true that this could potentially undermine the court process if opinion changes, but it really seems the purpose is to express more frustration.”
Is this law constitutional?
If courts ruled the issue with a clean slate, they could find plausible arguments as to why the demonstrations were constitutionally protected speech, Wolokh said.
But the Supreme Court has made decisions in cases involving similar state laws and issues that suggest the courts would be inclined to uphold the 1950 federal law.
In one such case, the Supreme Court wrote in 1965 that “a State may take such safeguards as are necessary and reasonable to ensure that the administration of justice is at all stages free from external control and influence”.
Timothy Zick, a professor at William & Mary Law School, noted that the Supreme Court has drawn a line between protests targeting a specific apartment building and protests that walk down the public streets of a neighborhood.
He said there might be some legal latitude for protesters taking part in parades that merely passed a judge’s house, although other legal experts have argued that the use of the word “parade” in the law still leaves such demonstrations vulnerable to violation .
Wouldn’t this bill cover the regular protests in front of the Supreme Court, including an annual anti-abortion march?
Depending on how the law is interpreted, it could also be read to cover the annual anti-abortion march that ends on the Supreme Court grounds, a point some law enforcement officials pointed out when they arrived in front of the protesters after the protests residences of the judges were asked.
The law in question affects parades or picketing “in or near buildings that house a United States courthouse,” which includes the Supreme Court building among other federal courthouses.
But there are other rulings – in cases dealing specifically with restrictions targeting protests near the Supreme Court building – that complicate the analogy.
The litigants in this case took part in demonstrations not specifically related to a judgment the court was considering. There is certainly an argument that the annual March for Life aims to influence the court’s approach to abortion cases – and especially in years like this, when the demonstration took place while the judges had a case before them in which they have been asked to overturn the court’s abortion rights precedents.
Still, there are practical reasons that demonstrations outside the Supreme Court grounds may be viewed differently than demonstrations outside the residences of the judiciary, as the level of security that normally patrols the Supreme Court grounds makes these protests less of a physical threat .
“Pickets outside a person’s home are generally considered a bigger deal than outside of a very tough target like the Supreme Court, in my opinion,” Wolokh said.
Will the Justice Department enforce the 1950 Act?
The Justice Department has declined to comment on the GOP’s demands to enforce the federal picket law.
As pressure mounted, Department spokesman Anthony Coley released a statement on Wednesday, saying Garland “continues to be briefed on security matters relating to the Supreme Court and Supreme Court justices” and that he will provide the U.S -Ordered the Marshal’s Service to provide additional support to the agencies normally charged with protecting the Supreme Court.
The statement made no reference to the federal picket law. However, the involvement of the US Marshals Service could make it easier for federal prosecutors to bring such a charge.
Legal experts noted that prosecutors, including those in the Justice Department, have discretionary powers in deciding when to bring cases and how best to use their resources.
It is possible that instead of enforcing the law with a standalone charge, the department may attach a violation of the law to a case where other charges are brought against a protester, such as engaging in violence.
Could the protesters be prosecuted by state or local authorities?
In addition to the federal picket law, there are state laws and local ordinances that protesters may have broken at some point.
Montgomery County, Maryland — where protests took place at Judge Brett Kavanaugh’s residence — has an ordinance banning picketing “in front of or adjacent to private residences.”
No arrests had been made at this time, and a spokesman for the Montgomery County Attorney’s Office said, “We are sworn to abide by the law and, as always, we would review the individual facts of a case before making a prosecution decision.”
In Virginia, where several other judges are located, there is a state law prohibiting pickets that “interfere” with “a person’s right to quiet in their home.”
But Steve Descano, the County Commonwealth Attorney in Fairfax County, where some judges live, told CNN in a statement that he “would not prosecute community members for the peaceful exercise of their First Amendment rights.”
CNN’s Whitney Wild and Evan Perez contributed to this report.