Abortion rights activists in recent days have gathered outside the homes of three conservative Supreme Court justices to protest Roe v. Wade’s potential demise, taking their advocacy in an intensely personal and politically divisive direction.
The targeting of the residences — belonging to Samuel Alito, Brett Kavanaugh and John Roberts — has forced the White House to navigate a thorny question about the proper bounds of political discourse, one with sharply divided views over whether the tactic marks a worrisome escalation or an impassioned response befitting the likely loss of an almost 50-year-old constitutional right.
The Biden administration attempted this balancing act on Monday, with White House press secretary Jen Psaki denouncing the prospect of threats or violence but stopping short of condemning the protests outside of justices’ homes.
“We are a country that promotes democracy, and we certainly allow for peaceful protest in a range of places in the country,” Psaki said. “None of it should violate the law.”
Some political analysts viewed that response as tepid. Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program, said the Biden administration’s message could have been stronger.
“They’re trying to walk a line, pretty clearly, between a firm stance against violence toward judges while not alienating their pro-Roe base,” Wheeler said.
The recent demonstrations played out as street protests in major American cities and a suspected arson attack Sunday on a Wisconsin anti-abortion group have fueled concerns over whether Roe’s potential demise could spark a new wave of political violence in the U.S.
Robert Blair, coordinator of the Democratic Erosion consortium at Brown University, argued that the risk of political violence in the U.S. is very high and anything that contributes to the problem should be avoided. He said leaders need to say these protests cross a line in order to curtail violence.
“One of the fundamental problems of Jan. 6 is people in positions of leadership weren’t coming out and saying, ‘Hey, stop this.’ Most obvious: Donald Trump,” Blair said. “To the extent that you have folks like [President] Biden, or folks who are known to be supporters of abortion rights, coming out and denouncing these kinds of tactics, that’s important because it sends a really important signal that this is alienating people and I think that’s valuable.”
Other experts expressed less concern. Rachel Kleinfeld, an expert on political violence, agreed that government officials’ homes should be off limits, but she said she’s “not particularly worried” about the prospect of political violence erupting in response to overturning Roe.
“The vast majority of political and criminal violence globally is committed by men. The people most enraged by the Roe decision are women,” said Kleinfeld, a senior fellow in democracy, conflict and governance at the Carnegie Endowment for International Peace. “While men may be in the streets, their feelings are on the whole less visceral.”
On the political left, she added, those who most strongly support violence are the least close to the Democratic Party: “That makes their violence more spontaneous and less politically organized,” she said.
In discussing her opposition to protests outside people’s homes on either side, Kleinfeld said “there should be a separation between where people live and the jobs they do, to protect their children from trauma, as well as for democratic reasons.”
ShutDownDC, which is organizing the demonstration in Alito’s neighborhood this week, defended its decision to protest outside of individual homes because “it’s clear that the Justices don’t want to hear public opinion.”
“If they won’t listen to us at the building that symbolizes the power they have over us, then they’ll have to listen enough to us at a building that symbolizes just how personal this is—their homes,” Hope Neyer, a communications team member with ShutDownDC, told The Hill.
“To those suggesting that protests like this go too far, or cross a line, we say this leaked decision, if officially announced, crosses a line,” Neyer added.
Republican leaders forcefully denounced the demonstrations outside of justices’ homes as an intimidation tactic.
Senate Minority Leader Mitch McConnell (R-Ky.) on Monday called the protests an attempt to “scare federal justices into ruling a certain way” and “far outside the bounds of First Amendment speech or protest.”
Lawmakers are moving to quickly try to pass legislation that would extend the security Supreme Court justices have to their family members. A close ally of Biden, Sen. Chris Coons (D-Del.), was among the senators who introduced the legislation.
A draft Supreme Court opinion last week revealed that a bare 5-4 majority of the court’s most conservative justices are reportedly poised to overturn the landmark decision in Roe, which for nearly five decades has guaranteed a federal right to abortion access.
Within hours of the Monday evening leak, published by Politico, large crowds had gathered outside the Supreme Court. By Tuesday, law enforcement officials had installed 7-foot, black security fencing around the building and subsequently closed off portions of adjacent streets.
The fencing is part of stepped-up crowd-control precautions in the wake of the riot at the U.S. Capitol on Jan. 6, 2021, when a mob of Trump’s supporters breached the building in an attempt to stop the certification of the 2020 election results. Security fencing was up around the Capitol’s grounds for nearly five months after the insurrection.
The latest tumult comes amid a steep drop-off in recent years of the Supreme Court’s public standing, which has sunk to a historic low, and as new polling suggests the 6-3 conservative court is moving even further out of step with Americans, a majority of whom want to see Roe upheld.
Amid the fallout last week, critics accused the three Trump-appointed justices of having lied to the American public during their confirmation hearings by indicating they viewed Roe as settled law, only to endorse striking down the landmark 1973 decision soon after joining the bench. Many also recalled the Senate GOP’s refusal in 2016 to let then-President Obama fill the vacancy left by the late Justice Antonin Scalia, a move which would have insulated Roe.
The fallout over the draft opinion has created a messaging problem for the Biden administration. Although the White House has clearly condemned the attack at an anti-abortion group’s office in Madison, Wis., the more difficult response has concerned the demonstrations in the D.C. area.
Asked on Monday if Biden plans to condemn the protests at the homes of Supreme Court justices, Psaki noted there has not been violence or vandalism against justices.
“As an independent body, how they are influenced or if they are influenced is not for me to make a determination of, but we do believe in peaceful protests,” she said.