Republicans claim a 1950 law makes Roe protests at justices’ homes illegal. Here’s what to know

By Tierney Sneed, CNN

A 1950 federal statute prohibiting certain protests outside of a judge’s residence has been cited by Republicans calling for Attorney General Merrick Garland to enforce the law against abortion rights protesters who have gathered in front of Supreme Court justices’ homes.

The law in question is aimed at any “picketing or parading” in front of a courthouse or a judge’s home that is intended to influence “any judge, juror, witness, or court officer, in the discharge of his duty.”

Republicans say the recent demonstrations — which have come after a leaked draft majority opinion suggested the Supreme Court was preparing to overturn its abortion rights precedents — clearly fit the bill.

Here is what to know about the law, how it applies to the current circumstances and whether it is constitutional.

What is the federal law that Republicans are pointing to?

The law, enacted by Congress in 1950, makes it illegal to picket or parade with “the intent of influencing any judge, juror, witness, or court officer, in the discharge” … “in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer.”

Those found to have violated it face a fine or a prison sentence of up to a year.

Why did Congress enact it?

When the Senate was considering the legislation in 1950, its supporters pointed to picketing that happened outside of a trial of communist sympathizers. The residence of the judge in the case was picketed as well, according to the congressional record of Senate floor remarks about the legislation.

“It is readily apparent that such activities, if allowed to proceed without restraint, will not only detract from the dignity of our judicial proceedings but will ultimately result in the derogation of justice,” said then-Louisiana Sen. Allen Ellender.

Does it apply to the abortion rights demonstrators who have been protesting in front of the homes of justices?

Republicans now say that the demonstrations in front of the homes where Supreme Court justices reside are clearly covered.

“These are plainly efforts to bully the Court in response to the leaked Dobbs opinion,” Iowa Republican Sen. Chuck Grassley said in a Wednesday letter to Garland, referring to the abortion case now before the Supreme Court.

Though the law has normally been associated with protests outside courthouses where high-profile trials are being held, legal experts said that, at least generally speaking, the law could apply to the current circumstances.

“Certainly, on its face, it covers the picketing in or near — in this case it will be near — a residence occupied or used by such a judge,” said Eugene Volokh, a constitutional law professor UCLA School of Law.

Because the draft has been leaked but the ruling hasn’t been handed down, “it seems to me that (it) will be pretty easy to prove that it was with the intent to influence,” Volokh said.

Still, according to Drexel University School of Law professor Tabatha Abu El-Haj, protesting a pending Supreme Court opinion on a highly partisan issue could be seen as different from intimidating a judge or a jury considering whether to convict a particular person.

“Applying this law to this situation raises that fuzzy line between speech or demonstrations that are really meant to intimidate or subvert a judicial process in a substantive way,” she said. “It’s true that this could arguably subvert the judicial process if the opinion changed, but it seems really that the point of it is more to express frustration.”

Is this law constitutional?

If courts were assessing the question with a clean slate, they might find plausible arguments for why the demonstrations were constitutionally protected speech, Volokh said.

But the Supreme Court has handed down decisions in cases concerning similar state laws and issues that suggest that courts would be inclined to uphold the 1950 federal statute.

In one such case, the Supreme Court wrote in 1965 that “a State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.”

Another notable case was 1988’s Frisby v. Schultz, where the Supreme Court upheld a local Wisconsin ordinance that barred picketing “before or about any residence or dwelling.” Coincidentally, the ordinance was passed to address anti-abortion protesters who had been picketing outside the home of an abortion provider.

William & Mary Law School professor Timothy Zick noted that the Supreme Court has drawn a line between protests targeted at a specific residence, versus protests that travel down the public streets of a residential neighborhood.

He said there might be some legal wiggle room for protesters who participated in parades that merely passed a justice’s house, though other legal experts argued that the use of the word “parade” in the statute still made such demonstrations vulnerable to a violation.

Wouldn’t this law cover the regular protests at the Supreme Court, including an annual anti-abortion march?

Depending on the interpretation of law, it could also be read to cover the annual anti-abortion march that concludes at the Supreme Court’s grounds, which is a point some law enforcement officials have noted when asked about the protests outside justices’ residences.

The statute in question covers parading or picketing “in or near building housing a court of the United States,” which includes the Supreme Court’s building, in addition to other federal courthouses.

But there are other rulings — in cases dealing particularly with restrictions aimed at protests in the vicinity of the Supreme Court building — that complicate the analogy.

In one case, the Supreme Court knocked down restrictions on parading and displaying banners on the Supreme Court grounds. In a concurrence, Justice Thurgood Marshall wrote that the ordinance was flawed, in part, because it was “not limited to expressive activities that are intended to interfere with, obstruct, or impede the administration of justice.”

The litigants in that case were participating in demonstrations not linked specifically to any ruling the court was considering. There is certainly an argument that the annual March for Life is aimed at influencing the court’s approach to abortion cases — and particularly in years like this one, where the demonstration happened while justices had before them a case asking them 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 those in front of justice’s residences, given the amount of security that typically police the Supreme Court grounds make those protests less of a physical threat.

“Picketing outside of a person’s home, I think, is generally viewed as a bigger deal than outside of a very hard target, such as the Supreme Court,” Volokh said.

Will the Justice Department enforce the 1950 law?

The Justice Department has declined to comment on the GOP calls for it to enforce the federal picketing law.

As the pressure was ramping up, department spokesperson Anthony Coley released a statement Wednesday that said that Garland “continues to be briefed on security matters related to the Supreme Court and Supreme Court justices” and that he had directed the US Marshals Service to provide additional support to the agencies typically in charge of protecting the Supreme Court.

The statement included no reference to the federal picketing statute. 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 at the Justice Department, have discretion to decide when to bring cases and what is the best use of its resources.

It’s possible that the department might not enforce the law with a standalone charge, but could tack on a violation of the law to a case bringing other charges against a protester who, for instance, engages in violence.

Could the protesters face prosecutions from state or local authorities?

In addition to the federal picketing statute, there are state laws and local ordinance that the protesters may at some point be accused of violating.

Montgomery County, Maryland — where protests aimed at Justice Brett Kavanaugh’s residence took place — has an ordinance prohibiting picketing “in front of or adjacent to any private residence.”

There have been no arrests at this point, and a spokesperson for the Montgomery County State’s Attorney’s Office said, “We are sworn to uphold the law and, as always, we would look at the individual facts of a case before making a decision to prosecute.”

In Virginia, home to the residences of several other justices, there is a state law that prohibits picketing that “disrupts” an individual’s “right to tranquility in his home.”

But Steve Descano, the county commonwealth attorney in Fairfax County, where some justices live, told CNN in a statement that he would “not prosecute community members for peacefully exercising their First Amendment rights.”

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CNN’s Whitney Wild and Evan Perez contributed reporting to this report.