The responsibility for leaving conservative justices with hostile groups planted outside their doors rests with Merrick Garland.
You don’t need a lawyer. A truck driver can tell the difference between the crowd that welcomes the Red Sox home after they’ve won the World Series and the sullen crowds still standing outside the homes of the conservative justices of the Supreme Court.
We all know the difference between a smile and frown, between waving hands gesturing people to come forward versus hands signaling people to stay away. The differences are grounded in the natural way people understand body language, and in the way they understand words as their meanings are settled in ordinary language.
Not only does everyone understand these things, they must in order to get on with daily life. Everyone understands these human basics — that is, unless he is Attorney General Merrick Garland and the young lawyers in the Department of Justice feeding him advice.
When he was asked at a congressional hearing about the unfriendly crowds gathered every day around the homes of Justices Samuel Alito and Brett Kavanaugh, the attorney general said the discretion to deal with the crowds rested with the Marshals’ Service, on the scene to protect the judges.
Michael Mukasey, the distinguished judge who became attorney general under George W. Bush, remarked in a public speech that this account of Garland’s was a transparent evasion: The Marshals’ Service, as he well knows, is under the governance of the attorney general. The responsibility for any willingness to leave conservative justices with hostile groups planted outside their doors rests with Garland.
Under federal law, it is a crime to picket or parade “in or near” a federal judge’s residence “with the intent of influencing” him “in the discharge of his duty.” Yet it has been reported that the deputies serving at the justices’ homes have been told to enforce the law only as “a last resort to prevent physical harm to the Justices and/or their families.” Putting out sentences of that kind reflects a public discourse on law so shopworn that real principles have been turned into cliches, fit neither for prime time nor fortune cookies.
Verbal Assaults and Threats
The first point of awareness is that the notion of an “assault” has never depended upon bodily touching. One could shoot at a person and deliberately miss, or hold an unloaded gun near his head and pull the trigger. That is why “verbal assaults” were always taken seriously, as real assaults: the threatening or terrorizing phone call in the middle of the night, the campaign of denigration against racial and religious groups that have produced riots in the past, or the defamation that destroys a man’s reputation and business.
So Judge Kyle Duncan, while visiting the Stanford law school, made his way to the room for a recent lecture by passing through files of students spitting out derision and contempt for him. Furman University prepared to receive the writer Mary Eberstadt as students scrawled “fascist” on pictures of her, and the drumbeat went on calling her a “vicious transphobe” and “homophobe” — a routine welcome for...
