WASHINGTON (CN) — As congressional Democrats this week dialed in on potential ethics violations at the U.S. Supreme Court, their Republican colleagues took aim at what they say is another pressing issue — the security of its justices.
GOP lawmakers have long railed against protests that took place outside justices’ private homes following the May 2022 leak of the high court’s opinion in Dobbs v. Jackson Women’s Health Organization, the case that began rolling back national abortion rights. Weeks after the leak, police arrested an armed man outside the home of Justice Brett Kavanaugh who said planned to kill the jurist.
Republicans have argued that demonstrators were bent on intimidating the justices into changing their minds on the Dobbs ruling, whose release in late June ultimately hewed to the unauthorized draft.
According to some in the GOP, the protesters ran afoul of federal law that prohibits demonstrations near federal courts or the homes of federal judges with the intent to influence their decisions. Violating the law they point to — Section 1507 in Title 18 of the U.S. Code of Federal Regulations — is punishable by fines and a sentence of up to one year in prison.
Intending now to hike criminal penalties in Section 1507, a group of legislators this week introduced a measure that describes a lack of enforcement from the Biden administration. Republican Senators John Boozman, Marsha Blackburn and Tom Cotton are behind the bill that would raise the protest law’s term of imprisonment to five years from one.
“Conservative Supreme Court Justices are facing increasing protests from far-left extremists trying to intimidate or punish the justices for their decisions,” Cotton said in a press release Monday. “This legislation will help protect all Supreme Court justices from threats of violence so they can do their jobs as impartial interpreters of the law,” the Arkansas Republican added.
There is no mention in the release about the ongoing revelations concerning Justice Clarence Thomas that have spurred national clamor over the lack of a requirement for the justices to follow a code of ethics like other members of the judiciary and government officials.
Senator Blackburn complained in the statement that none of last summer’s protesters had been arrested and that the Department of Justice had not issued any guidance to law enforcement to carry out the federal protest law. “Justices must be allowed to do their jobs without fearing for the safety of themselves or their families,” the Tennessee lawmaker added.
Congressional Republicans followed up the new legislation with a Tuesday letter to Attorney General Merrick Garland criticizing what they framed as a deliberate decision not to enforce the protest law during the Dobbs demonstrations.
The lawmakers pointed to training materials for U.S. marshals obtained by Alabama Senator Katie Britt that excluded the protests outside the justices’ homes from Section 1507 enforcement and instructed marshals to make arrests only as a last resort. They argued that the training slides represent direct instructions from the Justice Department not to prosecute demonstrators.
For its part, the Justice Department has defended its role in enforcing Section 1507 regulations in the year since the Dobbs leak. Garland himself put some distance between his department and enforcement during a March 1 appearance in the Senate Judiciary Committee, arguing that U.S. marshals on the scene would be responsible for arresting demonstrators under Section 1507.
Assistant Attorney General for National Security Matthew Olsen also told members of Congress as far back as July 2022 that the U.S. Marshals Service is responsible for enforcement, with support from Main Justice.
Although congressional Republicans have said that strengthening penalties under Section 1507 would make Supreme Court justices and their families safer, at least one expert sees the effort as little more than an attack on Democrats as they increase their own scrutiny of the high court.
“Remind me,” said Gabe Roth, director of reform-minded Supreme Court advocacy group Fix the Court, “did Republicans want to increase penalties for threatening a member of the Supreme Court when Justice Sotomayor’s life was endangered?”
Back in 2021, a few months a gunman appeared at the door of U.S. District Judge Esther Salas, injuring her husband and killing their son, Justice Sonia Sotomayor told 60 Minutes that authorities had found information suggesting that she was the killer's next target.
“Trying to make judicial security a partisan issue, as this bill is attempting, is incredibly cynical,” Roth said. “But, if I’m being honest, I find the idea of protesting outside a justice’s house to be pretty pathetic, as well.”
As congressional Republicans take aim at the Justice Department’s enforcement of federal protest law, mounting reports of Justice Thomas' apparent financial improprieties have led Democratic colleagues to push for greater transparency.
In a series of reports over the last several weeks, ProPublica has detailed the decadeslong failure of Justice Thomas to report a series of lavish vacations bankrolled by conservative megadonor Harlan Crow. Among the latest allegations against Thomas are that Crow had paid a nephew’s private school tuition and that a separate conservative activist had secretly paid the jurist’s wife for consulting work.
Some experts have said that failing to report some of these transactions could amount to violations of the Supreme Court’s financial disclosure laws.
Democrats have loudly condemned these episodes, which they say are unethical conduct for a Supreme Court justice. Lawmakers this week again urged the high court to adopt an official code of ethics, arguing in a Senate hearing Tuesday that it should no longer be allowed to police its own standards.
Senator Dick Durbin, who has long proclaimed himself an advocate of Supreme Court reform, pointed out that the other branches of government are required to adopt a code of conduct to avoid fraud and corruption.
Rhode Island Senator Sheldon Whitehouse, who is sponsoring legislation to force the court to adopt an ethics code, stated his case plainly in a tweet Thursday: “When does the stench get bad enough that SCOTUS stops the cover-up and ends the mischief?”
The Democratic lawmaker called on Chief Justice John Roberts to step in. “Any other government employee would be fired,” Whitehouse said.
The Supreme Court has so far refused to adopt its own code of ethical standards. As evidence, Roberts, who refused an invitation to testify before Congress on Tuesday, has pointed to the high court’s 2011 year-end report, which concluded that it should not be held to the same ethical requirements as lower federal courts.
In response to recent criticism from Democrats, Roberts sent Senator Durbin last week a statement laying out the Supreme Court’s ethical standards, signed by all nine justices. The Illinois Democrat, who chairs the Senate Judiciary Committee, said Tuesday that a statement of principles was not a proper replacement for official standards.
Thomas, meanwhile, has not responded to the reporting since early last month, when he defended his conduct and said he has always sought to abide by the Supreme Court’s ethical principles.
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