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An attack on our independent judiciary

The left’s political offensive against the Supreme Court is way out of bounds

Members of the Supreme Court sit for a portrait at the Supreme Court building in Washington, D.C., Oct. 7, 2022. Associated Press/Photo by J. Scott Applewhite, file

An attack on our independent judiciary
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Earlier this week, the Democratic-led Senate Judiciary Committee held hearings on whether to impose an ethics code on Supreme Court justices. While an ethics code seems like a relatively innocuous thing to discuss, the hearing was all about bringing the Supreme Court to heel. It was about threatening and coercing the justices into voting the way Democratic senators want, rather than in accordance with the law.

Unfortunately, the effort from the far left to wield influence over Supreme Court justices and their decisions is nothing new.

In March of 2020, following oral arguments in an abortion case, Senate Majority Leader Chuck Schumer took to the steps of the Supreme Court to threaten two justices by name. “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind. And you will pay the price.” Such statements are both out of bounds and unprecedented.

The chief justice then took the unusual step of replying to Sen. Schumer, issuing a pithy statement: “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter.”

Threats to the Court’s independence are spreading. The Supreme Court has remained at nine justices since 1869, yet when President Trump nominated three justices, this sparked demands for packing the Supreme Court with more bodies (presumably ones that would vote a certain way). Congressional Democrats even introduced legislation to expand the Supreme Court from nine to thirteen justices–a move aimed, like FDR’s infamous court packing plan, to bring the justices back into line with certain political outcomes.

And then there is the leaked opinion in Dobbs v. Jackson Women’s Health Organization. Justice Alito has spoken out about the unprecedented threats to the Supreme Court justices’ safety caused by that egregious breach. In a recent interview, he explained how damaging the leaked opinion was to the Court, creating an atmosphere of “suspicion and distrust.”

Even in the wake of the assassination attempt on Justice Kavanaugh, some Democratic leaders have refused to tone down their rhetoric.

In a blistering report, Justice Alito said that he “personally has a pretty good idea” who leaked the report. He was certain about the motive, “It was part of an effort to prevent the Dobbs draft from becoming the opinion of the Court.” Justice Alito also blasted the idea that a conservative would have leaked the draft hoping to lock in the majority. “That’s infuriating to me,” Justice Alito said. “Look this made us the targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”

He added that even today he does not feel “physically safe.” He is driven around in an armored vehicle, and he’s not supposed to go anywhere without his police escorts. Justice Alito has also noted that the leaked decision left justices vulnerable as “targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us.”

In fact, that precise targeting happened. In the summer of 2021, a man upset by the leaked Dobbs opinion, Nicholas Roske, arrived at Justice Kavanaugh’s home armed with a tactical knife, a Glock 17 pistol, ammunition, pepper spray, and zip ties. Even in the wake of the assassination attempt on Justice Kavanaugh, some Democratic leaders have refused to tone down their rhetoric. U.S. Sen. Jeanne Shaheen, D-N.H., went so far as to warn the Supreme Court that it must change course from the draft opinion and reaffirm Roe or face a “revolution.”

Meanwhile, the Biden Justice Department has done nothing. A federal statute prohibits protesting at the home of a Supreme Court justice with the intent to influence a case. That statute clearly applies—as even pro-abortion scholars note—and yet the administration has sat on the sidelines while the families of justices were harassed and endangered. The department stood by while protestors covered in fake blood delivered baby dolls to Justice Barrett’s home and while abortion-activists released the name of her children’s school. Her young children served as no deterrent to the protestors, but it should have been an additional incentive to the Biden Justice Department to enforce the law.

Recently, Attorney General Merrick Garland stated that marshals “have full authority to arrest” violators of the law. Yet training slides reveal that deputies are told to enforce the law only as “a last resort to prevent physical harm to the Justices and/or their families.”

The Constitution was designed to insulate the Supreme Court and other federal judges from political pressure. The life-tenure and salary protections that come with the job are supposed to guarantee that justices base their decisions on what the law says, not political providence. This independence preserves our own liberties and is under attack. No one wins when violence and threats are the order of the day.

Editor’s note: Writer Erin Hawley is married to U.S. Sen. Josh Hawley, R-Mo., who sits on the Senate’s Judiciary Committee.

Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and a law professor at Regent University School of Law.

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