The Assault on the Supreme Court


Journal Editorial Report: Even protecting the lives of judges becomes a political issue. Images: Getty Images Composite: Mark Kelly

Democrats are upset that many Republican voters don’t consider the Jan. 6, 2021, Capitol riot to have been an assault on democracy, and maybe one reason is that too many Democrats appear to have a double standard about which democratic institutions they want to protect.

Jan. 6 was an assault on the transfer of presidential power and Congress’s duty to certify the Electoral College votes under the Constitution. But what about the growing threat to the third branch of democratic government, the Supreme Court, and especially the seeming nonchalance toward last week’s arrest of an armed man outside the home of Justice

Brett Kavanaugh

?

Judging by the Democratic and media reaction, you’d think this was routine news. Publications such as the

New York Times

buried the story, while President Biden still hadn’t commented as of Sunday afternoon. Speaker

Nancy Pelosi

seemed barely to care as she said the House will eventually get around to considering a Senate bill to add security for the families of the Justices. Does anyone think this would have been the reaction if Justice

Sonia Sotomayor

had been targeted?

It’s true that the man arrested outside Justice Kavanaugh’s Maryland home may suffer from mental illness. Police say he said he was having suicidal thoughts. But police also say he was upset about looming Supreme Court rulings on guns and abortion—a distinct political trigger for his violent intent.

There’s reason to worry that this won’t be the last such attempt. Protesters continue to picket outside the homes of several Justices, despite federal and local laws against such behavior. Ruth Sent Us, the left-wing group that published the home addresses of the Justices, advised followers last week that Justice

Amy Coney Barrett

goes to church daily and her children attend a People of Praise school.

This is all the more worrisome because the Court is arguably more vulnerable to acts of violence than the other branches. There are only nine Justices, and a single vote can change the result in a case. There is also typically a period of weeks or months between oral arguments in a case, which can hint at how Justices are leaning, and the release of the Court’s judgment.

A bad actor, spun up in righteous fanaticism, might believe that this is the moment to kill a Justice to stop a result. Note that Justice

Samuel Alito’s

draft opinion, leaked to the press, suggested a 5-4 majority to overturn Roe v. Wade. One vote would be decisive.

Congress with its 535 Members would continue to function as a democratic institution even after an assassination. The Presidency is uniquely vulnerable because it is vested in an individual, but he is protected by the large security apparatus of the Secret Service.

The Justices have nothing close to that security, yet a single assassination would do tremendous damage to the Court and to democracy. Imagine the political fury if President Biden appointed a Justice to replace a conservative member of the Court who had been murdered. Democrats who think this would work in their favor might think again.

All of this means that Congress and the President, representing Articles I and II of the Constitution, have a special obligation to protect the Article III judiciary. In a less polarized era, Mr. Biden would have called the leaders of both parties and chambers in Congress to the White House for a joint appearance to denounce the attempted assassination of Justice Kavanaugh and any act of violence against the judiciary. He could still do this.

Meanwhile, Attorney General

Merrick Garland

could also warn, and then prosecute, those who are attempting to intimidate the Justices by harassing them or their families at home or at school. Critics of the Court can demonstrate all they want in front of the Supreme Court or march in the streets of Washington. But attempting to influence judges with threats is a federal crime.

We wish we didn’t have to write this, but we live in fanatical times when political violence is all too possible. Protecting democracy means protecting all of its institutions.

Copyright ©2022 Dow Jones & Company, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8

Appeared in the June 13, 2022, print edition.



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