[Note: This article was posted the day before this was reported: “Youth baseball coach fractured 72-year old umpire’s jaw after ejection, league says.” Written by Jack Baer and posted on yahoo!sports.]
“But the right to protest is essential to America,” so spoke Juan Williams in a passionate discussion with Karl Rove regarding the attempt to influence, more like intimidate, several Supreme Court judges. 1 The issue is the result of the leaked draft of the as-yet-to-be-released Court decision, Dobbs v. Jackson Women’s Health Organization. This Court ruling could overturn Roe v. Wade. In addition to igniting already volatile public opinion, the release of the draft was a breach of legal ethics and possibly illegal if an investigation would prove that point. 2
The right to protest is listed in the First Amendment to the Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 3
What Is the Role of the Judiciary?
“Peacefully protest and petition the government.” Granted, the judiciary is the third branch of the federal government. However, it is unique in one critical aspect. While the executive and legislative branches are intimately involved with proposing and enacting laws, the judiciary cannot. Its main purpose it to determine the constitutionality of laws or to validate/ overturn lower courts decisions.
It’s Not About Deciding Whether a Law is “Good” or “Bad”
Here is a key distinction: the Court is not to decide whether it views a law as “good” or “bad,” or whether a Constitutional right can be suspended because public sentiment is rightfully upset at a particular expression of freedom of speech. Even a well-intentioned law may run afoul of the Constitution.
For example, the “Brady Law” (Brady Gun Violence Prevention Act) passed in 1993 4 was amended because: “In Printz v. United States (1997) the U.S. Supreme Court holds that the Brady Law’s waiting-period requirement is constitutional, but finds that the mandatory background checks required of local authorities are unconstitutional.” 5 The net result: “In its 1997 decision in the case, the Supreme Court ruled that the law’s provision requiring state and local law enforcement officials to perform gun buyer background checks violated the 10th amendment. In its 5-4 split decision, the Court found that the law violated both the concepts of federalism and the unitary executive embodied in the 10th Amendment. However, the Court upheld the overall Brady law, leaving state and local law enforcement officials free to conduct background checks if they so choose, which most do today.” 6
On the other hand, there is Texas v. Johnson 7 where despite understandable feelings against burning the U.S. flag, the Court ruled that the First Amendment upheld the plaintiff’s right to do it as a show of free speech. 8 Of course, if the flag was someone else’s property, then a different law is activated.
The Court is charged with judging the constitutionality of a law after it’s passed. It is not a governing body which makes the law. Congress can pass a law, constitutional or not. It is up to someone to challenge it in court. It is not the Court’s responsibility, nor does it have the time, to review every legislative proposal for constitutionality.
Impartial Third Parties Are to Be Protected From Influence
For citizens to attempt to intimidate (a/k/a “influence”) the Court to render a decision it wants, is totally inappropriate and generally considered illegal. 9 Unfortunately, it has happened in the past, but that doesn’t justify it. 10 The Court must be insulated from any form of lobbying or from having to raise campaign funds for re-election as these reduce the impartiality essential to its mission. This protection applies to jurors at lower courts levels. There are some sensitive cases where they are sequestered to prevent any outside influence.
Respect for Arbiters Has Two Purposes
It’s strange that some sports umpires and referees receive more protection than judges. There are certain signs of disrespect (e.g. throwing a batting helmet) or “special words” which incur automatic ejection of the offending baseball player. Why? In addition to the necessary respect due to arbiters (“old fashioned” but still valid), it’s to prevent their disorderly conduct from escalating into crowd violence.
We have disdain for “Third World” countries where bribery and graft are common. If we allow public opinion to express itself physically in the attempt to shape what is to be an impartial ruling, then how much better are we? When respect for legitimate authority declines, so does the society.
1 – “Karl Rove Unleashes on Juan Williams Over Protestors At Justices’ Home: ‘Should Be Arrested’,” by Jon Dougherty, https://conservativebrief.com/karl-rove-63734/, 6/13/2022.
2 – “The recent leak of a draft opinion by U.S. Supreme Court Justice Samuel Alito that apparently would overrule Roe v. Wade is a game changer for the Supreme Court’s deliberative processes. Until now, justices have deliberated and exchanged draft opinions in private…
“Chief Justice John Roberts was quick to push back on any attempt to give the draft Alito opinion momentum, stating in his own press release that it did not reflect the final opinion in Dobbs vs. Jackson Women’s Health Organizationof any of the justices. Still, it is possible that some of the wavering justices may be afraid to back away from language the public now thinks they agreed with, even if they did not.
Was the leak a breach of ethics? Yes…
“Was the leak a crime? Probably not, but only an investigation will tell for sure. Law under 8 U.S.C. § 641 provides possible criminal penalties. Section 641 makes it illegal to convert for your use, without authority, something of value of the U.S. or ‘any department or agency thereof.’” From “SCOTUS Draft Opinion Leak Is a Breach of Legal Ethics,” by Richard W. Painter (a University of Minnesota Law School professor and former chief White House ethics lawyer under President George W. Bush, Bloomberg Law, https://news.bloomberglaw.com/us-law-week/scotus-draft-opinion-leak-is-a-breach-of-legal-ethics. 5/6/2022.
“Chief Justice John Roberts was quick to push back on any attempt to give the draft Alito opinion momentum, stating in his own press release that it did not reflect the final opinion in Dobbs vs. Jackson Women’s Health Organizationof any of the justices. Still, it is possible that some of the wavering justices may be afraid to back away from language the public now thinks they agreed with, even if they did not.
Was the leak a breach of ethics? Yes…
“Was the leak a crime? Probably not, but only an investigation will tell for sure. Law under 8 U.S.C. § 641 provides possible criminal penalties. Section 641 makes it illegal to convert for your use, without authority, something of value of the U.S. or ‘any department or agency thereof.’” From “SCOTUS Draft Opinion Leak Is a Breach of Legal Ethics,” by Richard W. Painter (a University of Minnesota Law School professor and former chief White House ethics lawyer under President George W. Bush, Bloomberg Law, https://news.bloomberglaw.com/us-law-week/scotus-draft-opinion-leak-is-a-breach-of-legal-ethics. 5/6/2022.
3 – https://constitution.congress.gov/constitution/amendment-1/
4 – “H.R.1025 – Brady Handgun Violence Prevention Act,” https://www.congress.gov/bill/103rd-congress/house-bill/1025
5 – “Brady Law Requires Background Check,” https://www.annenbergclassroom.org/timeline_event/brady-law-requires-background-checks/
6 – “The Brady Bill and Background Checks for Gun Buyers,” by Robert Longley, https://www.thoughtco.com/brady-act-gun-buyer-background-checks-3321492, updated 2/2/2022.
7 – “Texas, Petitioner v. Gregory Lee JOHNSON, (1989,” https://www.law.cornell.edu/supremecourt/text/491/397
8 – “The majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. The majority noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech.
“In particular, the majority noted that the Texas law discriminated upon viewpoint, i.e., although the law punished actions, such as flag burning, that might arouse anger in others, it specifically exempted from prosecution actions that were respectful of venerated objects, e.g., burning and burying a worn-out flag. The majority said that the government could not discriminate in this manner based solely upon viewpoint.” From “Facts and Case Summary – Texas v. Johnson,” https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-texas-v-johnson
9 – “Fact Check: Is it legal to protest outside justices’ homes? The law suggests no, “ by Sara Swann, Austin American-Statesman, https://www.statesman.com/story/news/politics/politifact/2022/05/23/fact-check-legal-protest-outside-justices-homes-abotion-protests-roe-v-wade/9862085002/. 5/23/2022.
10 – “Support it or not, but protesting at a judge’s home is not a new tactic,” by Jim Camden, The Spokesman Review, https://www.spokesman.com/stories/2022/may/15/support-it-or-not-but-protesting-at-a-judges-home-/, 5/15/2022.
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