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Supreme Court gets defensive after abortion draft leak

The justices take the spotlight in an era when violence against public officials and attacks on buildings have increased

With the Supreme Court's new fencing in the background to protect the building, a worker with Washington's Nuisance Abatement Graffiti Team power washes abortion rights messages, including one that reads “our rights,” written in chalk on 1st Street NE on Monday.
With the Supreme Court's new fencing in the background to protect the building, a worker with Washington's Nuisance Abatement Graffiti Team power washes abortion rights messages, including one that reads “our rights,” written in chalk on 1st Street NE on Monday. (Bill Clark/CQ Roll Call)

The leaked draft of a Supreme Court abortion decision marked a changing point in security for the historically cloistered institution, which has long drawn public scrutiny and protest but now has further entrenched as a reaction to perceived threats to safety.

On Capitol Hill, Chief Justice John G. Roberts Jr. gave final approval to surrounding the Supreme Court building with unscalable fencing, the kind that went up after the Jan. 6, 2021, attack on the Capitol across First Street NE.

Capitol Police put down concrete barricades to shut that street down to traffic, as near daily crowds of both anti-abortion and abortion rights advocates filled the sidewalk outside the court, the more typical spot for protests about decisions.

The decision to shut down the street was made “out of an abundance of caution to keep everyone safe,” the Capitol Police Department said in a statement. “TBD on when it will re-open.”

Protesters gathered outside Supreme Court justices’ homes over the weekend, an exceedingly rare personal outcry about court action, chanting “we will not go back.” A website for the effort states more walk-by protests are planned for the justices’ houses on Wednesday.

In the Senate, Texas Republican John Cornyn partnered with Delaware Democratic Sen. Chris Coons to introduce a bill last week that would give Supreme Court law enforcement the ability to provide protective details for justices and their families around the clock.

“This risks violence against members of the Supreme Court and their families,” Cornyn said of the leaked opinion during a Thursday meeting of the Senate Judiciary Committee.

That committee sent a bill to the floor in December that would allow federal judges and their immediate families to demand their personal information be wiped off the internet — a response to a gunman who opened fire at a federal judge’s home in New Jersey in July 2020, killing her son and wounding her husband.

But a similar bill previously was blocked, reportedly because lawmakers wanted the ability to do the same, in response to recent and growing threats and physical attacks against government officials. That including the 2011 shooting of Rep. Gabrielle Giffords at an event in Arizona and the 2017 shooting of House Republican Whip Steve Scalise at a congressional baseball game practice.

Possibly rancorous

The leaked draft, penned by conservative Justice Samuel A. Alito Jr., called abortion a “rancorous national controversy,” and noted that the court could not predict how the public would react to the decision.

In a statement last week Chief Justice John G. Roberts Jr. confirmed the authenticity of the draft, which indicated there were enough votes for the court to overturn the 1973 Supreme Court precedent that first established a constitutional right to have an abortion.

Later in the week, Alito reportedly canceled his appearance at a judicial conference for the federal appeals court based in New Orleans. Josh Blackman, a law professor at the South Texas College of Law, tweeted that Alito recorded a video message for attendees, saying his appearance at the event “became impractical.”

Supreme Court Justice Clarence Thomas reportedly told a different judicial conference last week the justices would not be “bullied” by the public reaction to the draft.

The weekend’s protests were reportedly peaceful, but played into broader concerns about judges’ safety and the security of the judicial branch in recent years. The Black Lives Matters protests in 2020 damaged numerous federal courthouses, and the Supreme Court building was included in the wide circle of fencing that went up on Capitol Hill after the Jan. 6 attack on the Capitol.

The last time major public outcry focused on the Supreme Court, for the confirmation of Justice Brett M. Kavanaugh, protesters pounded on the front doors of the building and climbed the lion statues flanking its western face.

The fencing now surrounding the Supreme Court, which prevents a repeat of the incident, has signage citing an order of the Marshal of the Supreme Court. Statute empowers the marshal, who is also investigating the leak, to make Supreme Court security changes approved by Roberts.

That allows for actions “that are necessary for the adequate protection of the Supreme Court Building and grounds and of individuals and property in the Building and grounds; and the maintenance of suitable order and decorum within the Building and grounds.”

This is the first time since those incidents that the Supreme Court has been such a central target of concentrated public ire and emotion in an era when threats of violence against public officials and attacks on buildings have spiked.

Heightened scrutiny

That attention will only increase over the next few weeks. Protesters have clashed outside the court with potentially more than a month left before the release of the final opinion in the case, where the court appears poised to reverse nearly five decades of precedent that gave women the constitutional right to abortion.

Abortion has for years been one of the most divisive topics in American politics. In 2015, a mass shooting at a Colorado Springs Planned Parenthood clinic left three people dead. They were part of at least 11 deaths in attacks on abortion clinics and providers since 1993, according to a New York Times report at the time.

A representative for the Supreme Court did not immediately respond to questions about the enhanced security measures for the court building or justices Friday.

The leak came amid a short break in the remaining weeks of the Supreme Court’s term. It held its last oral arguments of the term last month and is expected to issue all of its remaining opinions, including in the abortion case about a Mississippi law, before the end of next month.

White House Press Secretary Jen Psaki said on Twitter that while the president supports the right to protest “that should never include violence, threats or vandalism.”

“Judges perform an incredibly important function in our society, and they must be able to do their jobs without concern for their personal safety,” Psaki said on Twitter.

Thursday at the Senate Judiciary Committee, which recently dealt with a judicial nominee who received threats after a tweet from Texas Republican Sen. Ted Cruz, the panel members decried protests at justices’ homes.

Iowa Republican Sen. Charles E. Grassley brought up the planned walk-by of justices’ house at the meeting. “Disgraceful,” Grassley said. “This seems to be nothing more than an appalling attempt to intimidate the justices.”

Utah Republican Sen. Mike Lee said that planned protests at the homes of justices and other public officials “have no place in our republic.”

“You go to the home of a public official to protest, that is an implicit threat,” Lee said. “If you show up where someone sleeps, and raises children, that’s an implicit threat of physical violence. We deserve better than this.”

Illinois Democratic Sen. Richard J. Durbin, the panel chairman, agreed with Lee that it is inappropriate to show up at a justice’s home.

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

Most of the protests have so far focused on a Supreme Court building that has been shuttered to the public for the last two years due to the coronavirus pandemic. The justices started holding oral arguments in person again in October after more than a year of remote arguments.

Later this week, the House Appropriations Committee plans to hold a hearing on the fiscal year 2023 budget proposal for the federal judiciary, which includes more than $800 million for courthouse security, a more than $100 million increase from fiscal year 2021.

Aiden Quigley contributed to this report.

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