Short Take: Should a Justice’s Home Be Off Limits?

The question isn’t a legal one, as the First Amendment, subject to certain content-neutral time, place and manner restrictions, would permit it. But just because the law allows something does not mean it should be done. In the distant past, the idea of protesting at a government official’s home crossed a line. The norm was that homes and families were off limits as a matter of civility.

That’s long since changed, as reflected by the middle-of-the-night protests at the home of Portland mayor Ted Wheeler and New York City police commissioner Dermot Shea. No doubt the neighbors were thrilled.

And, indeed, the arguments in favor of going after these officials at home draws some greater validity from either their public positions or their direct responsibility for making political decisions that, at least in the minds of protesters, have a direct affect on their health and safety. This is certainly disputable, but that’s the argument.

But does that hold true for a Supreme Court justice? A group has announced plans to protest Justice Brett Kavanaugh at his home on the evening of September 13th.

While the idea that this is how one influences a justice seems to suggest that they missed middle school civics, let’s assume it will be a peaceful protest rather than devolve into violence, even though that does happen sometimes. And the question isn’t whether it’s protected under the First Amendment, which there is no reason to assume it isn’t. And they are trying to police their own for the sake of social justice, if not the justice’s sensitive ears.

The arguments for taking such protests to the homes of politicians, who are and should be subject to popular influence, are one thing, but to a justice?

I responded to Ari that homes and families should be off limits, not because the law wouldn’t allow it but because of the downward spiral of violence when norms of civility are abandoned.

Homes are off limits. Families are off limits. If your issue is with a public official, protest him in that capacity, not at his home with his family.

Ari replied that:

And when government officials are working remotely, people are just SOL? Either way, I’m not so squeamish. Laws don’t stop impacting me when I’m in my home with my family.

Given the reactions, it would appear that Ari’s view, that there should be no norm against going after someone at home, has become the dominant view, at least on the twitters, and my view that neither home nor family should be fair game for the outraged is out of touch.

It’s not that Justice Kavanaugh is likely to be intimidated by protesters at his home, and hopefully won’t react with antagonism toward the issue either, as the actions of the unduly passionate have nothing to do with the proper decision to be reached by the Supreme Court. And should this devolve into a “mostly” peaceful protest, the dynamics may well change even though there will almost certainly be a cohort that will indulge in sophist gymnastics to rationalize why doing a little damage to a justice’s house is totally appropriate given the damage he can do to America.

But is this where we want to be, where we should be? Should all judges now be targets of protest at home in an effort to intimidate them into ruling (or resigning?!?) as a mob demands? Will the next step be going after their children at school or their spouses at the grocery store? Are there any constraints, or are the ideas of certain places and situations being “off limits” now archaic in a nation where everything is an existential threat and must be stopped at all costs?

Does Ari’s argument, that bad law affects him at home and so why should the person making bad law be safe from protest at his home, have merit? Does it matter anymore if this has become a sufficiently acceptable course of action, that neither home nor family are off limits to the outraged mob?

48 thoughts on “Short Take: Should a Justice’s Home Be Off Limits?

  1. rxc

    We seem to be on the brink of forgetting the foundational principle of Mutual Assured Destruction – that “…full-scale use of [weapons of mass destruction] by two or more opposing sides would cause the complete annihilation of both the attacker and the defender…”

    Reply
  2. MIKE GUENTHER

    Before Trump, this probably wouldn’t be an issue. But ever since Congress Person, Maxine Waters told progressive followers to “Get in their faces. Confront them wherever you see them, at restaurants, gas stations, stores, wherever you see them. Let them know they’re not welcome”, ‘mostly’ peaceful confrontations have happened all over the country.

    It’s deemed okay for leftist progressives to harangue anyone on the right in public settings or at their homes, but God forbid anyone on the right protest at a progressive politician’s home or place of work.

    Family and homes should definitely be off limits for protests by either side.

    Reply
    1. Jeff Davidson

      Yes, the entire phenomenon started with Maxine Waters. There is no evidence prior to her of anyone – let alone wearing a MAGA hat – confronting anyone or getting in anyone’s face. It all started with Democrats – or is that DemonRats – and not with Newt Gingrich’s instructions for which adjectives should be associated with Democrats and liberals, or the words that Lee Atwater sought to whisper, or anyone of any political stripe before them. The devolution Scott speaks of has all been in the past 3 years, and all on one side, rather than over decades. (Do I need a /s?)

      Reply
    2. Socraticsilence

      On this specific policy issue protests outside of the homes of people with far, far less power than a member of Congress, Cabinet Official or SC Justice– say doctors and nurses– has been an unfortunate norm for years

      Reply
  3. Turk

    Every contentious issue has protestors.

    I would not have an issue with a time, place and manner restriction for either judges or elected officials for areas abutting the home.

    If we want good people to do public service, then such a boundary line is appropriate.

    While Ari’s argument is good, it is also second best.

    Reply
  4. Lee Keller King

    Considering that some people didn’t have any problem bringing President Trump’s son, Baron, into the “conversation,” I think it’s a very small step for them to start protesting in schools and kindergartens.

    Of course, I hope they’re aware of the fact that Justice Kavanaugh is probably armed and will have armed Federal officers to protect his house. This could be totally different than protesting at the Portland mayor’s house.

    Lee

    Reply
    1. JJ

      Yes because this is absolutely another one sided issue. No Republican has ever made comments about Sasha and Malia Obama or Chelsea Clinton before they were adults.

      I guess I need a /s too.

      More on topic, I’d make the observation that progressives protesting at Kavanaugh’s home is inconsistent with their interpretation of his confirmation hearing where he’s all about revenge for personal attacks.

      Reply
      1. Scott Jacobs

        It is one think to say horrible things about a child, it is quite another to put the child in fear for their safety because of the mob outside at 2am.

        Reply
  5. El_Suerte

    Ari’s rule ignores the role lawyers for the parties have in creating legal outcomes. Why should they (and he) get to evade accountability?

    Reply
  6. B. McLeod

    So, the strategy here is to go to the home of a justice they suspect may be hostile to their views, and make sure of it.

    Morons.

    Probably the most this will achieve is some overtime for some federal marshals.

    Reply
  7. DaveL

    It does not escape my notice that there’s a distinct asymmetry in this tactic that favors Democrats. Washington DC is an overwhelmingly democratic enclave surrounded by democratic enclaves. It’s much easier to assemble a left-wing mob to besiege Supreme Court justices, or Congressmen, or the President, than it is a right-wing mob. Moreover, it’s much easier for a radical leftist politician to go about his daily life with no contact with people who find his policies abhorrent. He can also rest assured that, with local government controlled by his political allies, he can exert some degree of control over the ground rules.

    It’s easy to say that if your decisions or policies affect me at home, I get to assemble a mob outside of yours, when you know very well that the people up in arms about your preferred policies live 1,000 miles away.

    Reply
    1. Howl

      “It’s much easier to assemble a left-wing mob to besiege Supreme Court justices, or Congressmen, or the President, than it is a right-wing mob.”
      That may be, but you gotta admit, when the right-wing assembles a mob to besiege Congress, they go all-out.

      Reply
    2. Chris

      Welp, of course your opinion and mine are our own, but seriously… “radical leftist politician”? And who might that be in our Sainted Republic? Certainly there are radical politicians, but they uniformly occupy the side of the aisle that (1) does not believe a woman (pace the protestors’ #1 postscriptum above for my lack of inclusivity) has the right to decide what goes on inside her own body, (2) excises the first half of the Second Amendment in their tortured reading or relies on a single “contemporary” (actually from 50 years after the Constitution was ratified) use of the term “well-regulated”, and (3) believes that only elections that favor their side are legitimate. I suppose there _are_ “leftist” politicians if we really strain for an uniquely American interpretation of “leftist” as “fully capitalist but not buccaneers,” but “radical leftist”… nah. -from another anonymous commenter.

      Reply
      1. David Matthews

        When the first word of a comment is “welp,” what I have noticed that follows is always boilerplate partisan snark that could have been (or perhaps was) generated by a low-quality political “bot,” but is probably spun by a human who thinks she or he has an especially clever take, while just spewing the same tired partisan tripe.

        Sure ‘nuff. Again.

        Reply
  8. Elpey P.

    There is a direct relationship between the willingness of people to cheer protests at private homes and the degree to which they will freak out (using Patriot Act talking points) if their adversaries protest at the home of someone on their own team.

    So there is actually broad agreement on the issue in principle. But narcissists gonna narcissist.

    Reply
  9. Paleo

    Don’t compare abortion restrictions to life under the Taliban because doing so is islamophobic? Bullshit.

    Don’t make that comparison because it’s ignorant. It diminishes the suffering of actual people who are under Taliban rule. I live in Texas, which is ground zero for this stuff and is supposed to be like living under the Taliban. Except that it isn’t. We’ve also got Jim Crow (on steroids!) happening here because we can no longer vote from our cars at 2am. And of course the Holocaust at the border continues.

    Theses comparisons are stupid and insulting to the real victims of those political regimes. But the brains of these people have been destroyed by politics. So their incorrect sense of moral superiority gives them the right to disturb people in their homes.

    The parties continue their efforts to insure that I never support either again.

    Reply
    1. MM

      [Ed. Note: You’re welcome to comment on the issues raised by the post, dear first time random commenter, but if the only things you have to offer are infantile attacks on other commenters, then you’re not welcome to comment and your comments will be trashed.]

      Reply
    1. Jake

      Maybe a better question: Could existing precedent on time, place, and manner restrictions be applied to manage the safety and order of a protest at the private residence of a government official?

      Reply
      1. Rengit

        Frisby v. Schultz (the first link in our host’s post) would suggest the answer is yes. That case upheld a fairly sweeping municipal ban on single-residence picketing, such ordinance being enacted after several hour- to two-hour-long pickets by pro-life groups during daylight hours outside the home of a doctor who performed abortions. Based on the record, no threats or vandalism aimed at the doctor’s residence either, but the doctor and other residents found the assemblies to be a nuisance.

        Maybe limiting such a ban to only government officials or judges would be deemed a content-based restriction and fail First Amendment scrutiny, but hard to see how a more general ban wouldn’t. And if this grows as a favored tactic of protest groups, right or left, enacting such bans by states and municipalities around the country would likely become a winning political issue.

        Reply
  10. st

    Protesting at the homes of government officials was a key part of the American Revolution. In 1765, in response to the Stamp Act, Samuel Adams rallied Boston. A protest organized by Adams against Andrew Oliver, the stamp master, drove him from his home to the safety of Castle William. The mob proceeded to destroy the interior of Oliver’s home.

    This was repeated August 26, this time against the homes of William Story, deputy register of the admiralty court, Benjamin Hallowell, the controller of the customs, and Thomas Hutchinson. Hutchinson was the nucleus and the leader of the small but powerful clique of oligarchs who were privileged by the royal government. An attack against him could only be interpreted as an attack upon the clique as a whole.

    This was repeated in Rhode Island later in August, with multiple protests and homes ransacked or razed to the ground.

    The precedent was established long ago.

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    1. Charles

      I don’t think this “precedent” has the meaning that you think it does.

      If that is the likely outcome of protesting at the homes of government officials, it would be “precedent” for outlawing such protests, not for allowing them.

      Reply
    2. DaveL

      In that sense, the revolution also provides a “precedent” for overthrowing the government by force of arms. However, the whole point of this question of civil society, with norms and boundaries delineated by law and custom, is to avoid the sort of violence and excesses that characterized the revolution.

      Reply
  11. Paleo

    So they should not only protest, they should go ahead and destroy his home? I mean, at least destroying property isn’t violence. So that’s good. And he’s probably got insurance, right?

    Because there’s no better way to convince someone of the virtue of your opinion than to piss them off.

    Reply
  12. Hunting Guy

    In the dim recesses of my memory, Viet Nam war protesters banged drums and trash cans outside Blair House in the wee hours of the morning, preventing the Vice President from getting a good night’s sleep.

    The courts ruled that it was OK.

    So, if it’s sauce for the executive goose, isn’t it sauce for the judicial gander?

    Reply
    1. Elpey P.

      They can do better than trash cans, and take a cue from the first Bush Administration’s use of AC/DC in Operation Nifty Package. Given the target, the obvious song choice would be “Have A Drink On Me.”

      Reply
  13. Aron

    Demonstrating at the personal residences of government officials is a dangerous line to cross. There will be incidences and it starts to boil down to threats, intimidation, and terrorism. In my mind, if people really want to speak to these officials to air grievances and to gain an understanding of why decisions were made, periodically holding discussion panels would seem to be a compromise point, especially with justices or judges with life time appointments and otherwise not accessible to the public.

    But, on the other hand…I doubt having a dialog is really the goal of any of this. People want a certain decision and judges 1) can’t amend a decision once its been made, 2) won’t discuss a case in progress, and 3) are rightfully insulated from political repercussions of controversial decisions.

    So the more pragmatic answer is to elect people that think the way you do, convert life time appointments to terms, appoint judges you think are competent to fill the resulting vacancies.

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  14. Curtis

    There is a great difference between legal and civil. Would Ari like protesters in front of his house? Would he applaud anti-abortion protesters exercising free speech in front of Sotomayor’s house?

    The golden rule is the most important moral value. If you don’t practice it, you don’t really belong in civil society.

    Reply
  15. ExpatNJ

    First Amendment: “Congress shall make no law … abridging … the Right of The People peaceably to assemble, and to petition the Government for a redress of grievances.”

    NOWHERE in this discussion thread was there any mention of that Right to “petition for redress of grievances”. And, nowhere in that enumerated Right above is there ANY restriction or stipulation that petitioning can only be done Monday to Friday, 9 to 5, and only at or through a government office.

    This thread – nay, even this webpage – would not be needed, if politicians, elected ‘leaders’, unelected bureaucrats, judges, law enforcement, and the rest of ‘the system’, did not do the things they do, and just left The People alone. Alas, since none of those government agents “acting under color of law” will restrain themselves enough to leave The People alone, it seems perfectly reasonable that The People won’t leave them alone.

    If the actions of government agents affect The People at their homes, it seems only fair that The People take actions at the homes of government agents.

    “Don’t START nothin’, won’t BE nothin’ ”
    ~ ‘Agent J’, (played by Will Smith), “Men in Black”, movie, 1997.

    Reply
    1. Rengit

      Putting aside that the Supreme Court has specifically held that the Petition Clause does not require government officials to listen to the petitions of citizens, what is the point in having a government to petition “for redress of grievances”, if any action that government officials might take in response to such petition, like passing a law, is deemed to affect The People and therefore be tantamount to “starting somethin'”? And if I ask the government to right some wrong, and they indeed do so, should I fairly expect adversely affected parties to turn up at my house at 2 AM menacingly quoting a Will Smith movie about aliens?

      Reply
    2. Skink

      Go to the top of the page. See the words just below “Simple Justice”? This here Hotel is where lawyers hang out to discuss law-like stuff. What it is not is a yellow and black book, titled “Law for Dummies.” Non-lawyers are allowed in the lobby, and if they behave, the bar. Sometimes, the pool bar, but that’s unusual. Non-lawyers that think they know law and spout their loud dumbassedness get only the grease pond, which is out behind the back parking lot. We considered putting in a better system for the old grease, but the pond has its purpose.

      I suggest a rubber suit for you. There’s some nasty shit in that pond. Legend has it there might be Jimmy Hoffa bones.

      Reply
  16. John Doe

    It’s fine if you think protesting Kavanaugh in this instance is wrong or unjustified or whatever else, but promoting that take to be an unconditional principle seems blinkered.

    Say for sake of argument that a future governor of some state or other declares himself governor-for-life, secedes from the union, attempts to impose martial law via the state national guard, and maybe tries to get a genocide campaign going for good measure. In that admittedly extreme hypothetical, it seems like sustained, transgressive mass protest would be one of the few ways of compelling the wayward lord to back down without mass violence, so it would be desirable even if it’s normally unacceptable.

    My adjacent take is that the general public can ultimately judge transgressive protests for themselves and punish unacceptable protests accordingly. If activists do something egregious for a cause the public doesn’t like, their cause will probably suffer, and if they do actual crimes, law enforcement will pursue them aggressively. I don’t think the things activists can do in the face of public hostility and law enforcement scrutiny are worth a lot of concern; there’s no slippery slope there.

    Reply
    1. SamS

      This is a bit reddit. The constitution provides for your hypothetical. It guarantees to every state a republican form of government. Therefore, should a governor seize power the federal government may use force to drive them from office.

      Reply
  17. Stuart Taylor

    Brilliant tactic, folks. Next step will be assembling mobs at the homes of all justices who have voted to uphold abortion rights — and all lower court judge who have done the same, and members of Congress, and law professors, and so on.

    Reply
  18. Grant Gould

    This issue points to a fundamental tension in liberal democracy: The system is structured to free political actors of legal consequences (eg, a judge or representative or majority voter cannot be punished for an unjust war or conviction or what-have-you) but civic decency norms also free them of social consequences.

    That may be sustainable when most of their society agrees that their actions fall within the ordinary “field of play” of politics, or where the people harmed by those actions are foreigners, weirdos, criminal suspects, or otherwise marginal. But when the scope of disagreement gets too wide, any set of norms that wholly prevents accountability is going to be unstable.

    Protests outside houses is probably better than any of the other systems of accountability on offer when the political class does violence to people who cannot vindicate their rights politically or judicially.

    Reply
  19. David Meyer-Lindenberg

    The point of this protest, as far as I can tell, is to a) vent and b) annoy the evil Kavanaugh. The most annoying way to protest him is surely by going to his house, so going to his house it must be. In other words, this protest is so idiotic, so fundamentally opposed to decency norms, that using decency norms to argue against it feels a bit like a doomed endeavor.

    Moving beyond this one example, I do agree that protesting at people’s homes should be frowned upon. It’s a blessing of ordered liberty that Americans may (and as a German, I envy you guys), but that doesn’t mean that Americans should. Ari’s point about Kavanaugh bringing his work home with him is unavailing. The political thrust of a protest will make itself felt at least as well if you hold the protest outside a gov’t building – in fact, you might thereby make it more compelling for people who do care about decency. But you undeniably would lose out on on some of the potential to piss off the guy you hate, or at least his family. And if that’s what it’s really about, as does routinely seem to be the case these days… well. Vox populi, vox Dei.

    PS: I’m largely indifferent to the angle about the potential for violence, as Kavanaugh and others like him are undoubtedly well-defended and protests shouldn’t be discredited a priori because some participants might misbehave. Way too heckler’s-veto-adjacent for me.

    Reply
  20. Richard Parker

    Asked in his old age to explain the causes of the Spanish Civil War, General Franco’s brother-in-law and former Foreign Minister Ramon Serrano Suner replied: “We simply couldn’t stand each other”.

    We’re getting there.

    Reply
  21. Solon

    While not directly the point of your post, I was struck by the post script suggestion (as I read it) that pro-lifers should not be compared to the Taliban because it is unfair to the Taliban (!?). Then it struck me that if that is true, that having a pro-life view of abortion makes one worse than the Taliban (I am not sure this is quite the meaning of the post script, but it is probably close enough), then protesting outside the home of a Justice who might be sympathetic to the pro-life cause is definitely justified. After all, if I thought that our country was at risk of devolving into Afghanistan, I would probably not worry so much about the civility of such a protest, given the stakes. Of course, I don’t think the stakes are that high, so I think that such protests are inappropriate, even if they are legal.

    Reply
  22. R.G. Camara

    Nah, if you’re a government official or a corporate board member of a major company, your home is fair game for protest (on the public street, not on the property itself, obviously). You wield enormous power and influence, impact people’s every day lives, and usually make a very good paycheck.

    Be a big boy or girl and deal with it. No sympathy for powerful people whining about the plebians and peons being mean to them. You chose that life and wanted that power. You get all the perks, you get the downsides, quit whining.

    And the First Amendment applies. Both for free speech *and* the right to lobby government for changes. Protest is a method of lobbying, although it might be termed “negative lobbying” (do this or we’ll make your home life unpleasant).

    Now, families are off limits, I agree with that. The family doesn’t do the decision making, you do (although Comey claimed his wife influenced his decision making, so that might be an instance where she is fair game).

    There’s an easy way to make such protests stop: resign and let someone else have it who can handle it. Move to obscurity and give up your power. No one protests gas station attendants or retireees.

    I think its about time judges had such protests happen on the regular to them at their homes. Let’s all stop pretending that major judicial decisions are anything but political, and thus fair game.

    I’d love to see Kagan, the Wise Latina, and the rest get this treatment as well at their homes, and also every major federal and state judge. Let them sweat, we’ll get some better decisions or at least some better judges.

    In short, if you can’t stand the heat, get out of the kitchen.

    Reply
      1. R.G. Camara

        lol. I’m sorry your feelz are hurt, asshole. And that no one gives a shit.

        Sorry not sorry.

        [Ed. Note: I posted this so others can enjoy the cool retort of a one-comment wonder.]

        Reply

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