Some dressed as characters from The Handmaid’s Tale, the dystopian novel about a society in which women are valued only if their ovaries are viable. Others chanted “This isn’t over” while holding signs that said “WE DO NOT CONSENT” and “UNFIT TO SERVE.”
That was the scene that greeted Justice Brett Kavanaugh when he arrived Oct. 9 for his first oral arguments at the Supreme Court. Days earlier, as he took the constitutional and judicial oaths in a private ceremony at the Court, protesters surged past police lines and up the building’s marble steps to pound on the front doors.
Eventually, police moved the protesters to the sidewalk and set up barriers to keep them off the Supreme Court grounds, where a law originally enacted in 1949 says, effectively, the freedoms of speech and assembly do not apply as robustly as they would in, say, a public park.
That law deserves renewed scrutiny. It is significant to the ongoing protests at the Court, and one of its rationales seems incongruous with historical reality and our current political and cultural moment.
The law, which is just 45 words (the same number, coincidentally, as the First Amendment), reads: “It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”
Congress passed the law after D.C. authorities stopped appointing Supreme Court guards as special police officers, stripping the guards of the authority to make arrests and to enforce the law on Court grounds. The law was intended to protect the building and the people therein and to maintain order and decorum.
The “grounds” have come to include the low steps leading from the sidewalk to the pill-shaped plaza, the plaza itself, the steps leading to the columns and the main entrance, and the lawn and landscaped areas, among others. But the grounds do not include the sidewalks abutting the streets that surround the Court on its city block. This photo, which I annotated, provides an example of the boundaries:
United States v. Grace, decided by the Supreme Court in 1983, laid the groundwork of those boundaries and, by extension, the speech and assembly restrictions there. The plaintiffs in that case separately visited the Court over several years and stood on the sidewalk adjoining the plaza, one as he distributed pamphlets and the other as she displayed a sign inscribed with the First Amendment’s text. Each time, police threatened to arrest them under the 1949 law, so they left and later sought an injunction against the law’s enforcement and a declaratory judgment that it was facially unconstitutional.
The Justices ruled unanimously that the law’s second prohibition (“to display…”) was unconstitutional as applied to the sidewalks, finding “nothing to indicate to the public” that the sidewalks were “part of the Supreme Court grounds” or “different from other public sidewalks in the city.” Thus, the sidewalks qualified for First Amendment purposes as a “public forum,” where “the government’s ability to permissibly restrict expressive conduct is very limited.”
But the Justices didn’t address the law’s application elsewhere at the Court. That job fell to the U.S. Court of Appeals for the D.C. Circuit, in 2015. It heard a case, Hodge v. Talkin, involving a man who wanted to distribute leaflets, sing and chant, and make speeches on the plaza to communicate “political messages” about Supreme Court decisions. The plaintiff alleged that the law was overbroad and vague and that it unconstitutionally infringed his speech.
The D.C. Circuit, in a unanimous panel opinion by Judge Sri Srinivasan (then-Judge Kavanaugh was not on the panel), held that the law was, indeed, enforceable on the plaza. The panel quickly dispensed with the overbreadth and vagueness claims, and dedicated the bulk of its analysis to the First Amendment.
Judge Srinivasan characterized the plaza as an essential part of the high court’s grounds, writing: “The plaza’s appearance and design vividly manifest its architectural integration with the Supreme Court building, as well as its separation from the perimeter sidewalks and surrounding area.” He said the plaza serves as the Court’s “elevated front porch” and is “dedicated to a use other than . . . public expression,” making it a nonpublic forum.
That classification permits the government to regulate more easily any speech and assembly activities there, to impose reasonable and viewpoint-neutral restrictions. And in Hodge there was no suggestion the law suppressed certain viewpoints (it “ban[s] demonstrations applauding the Court’s actions no less than demonstrations denouncing them”), so the issue was whether the law was reasonable in light of the government interest in using the property for its dedicated purposes.
In that respect, the government made two arguments. First, the law helps to maintain the decorum and order befitting courthouses generally and the Supreme Court in particular. Second, the law promotes the “appearance and actuality of a Court,” as Judge Srinivasan put it, “immune to public opinion and invulnerable to public pressure.” He added that the ready availability of the public sidewalk, nearby, reinforced the law’s reasonableness.
Moreover, of the government interest in the Supreme Court’s relationship to public opinion, Judge Srinivasan concluded, “Allowing demonstrations directed at the Court, on the Court’s own front terrace, would tend to yield the . . . impression . . . of a Court engaged with—and potentially vulnerable to—outside entreaties by the public.”
Although the D.C. Circuit got the underlying legal framework right—the public forum analysis—the stated interest in the “appearance and actuality” of the high court’s immunity to public opinion seems incongruous with historical reality and our current political and cultural moment. First, the Justices have, in some cases, been responsive to public opinion; and more broadly, as scholar Barry Friedman put it, “[i]t frequently is the case that when judges rely on the Constitution to invalidate the actions of the other branches of government, they are enforcing the will of the American people.”
Second, Justice Kavanaugh’s fierce confirmation fight, including his own nakedly partisan rhetoric before the Senate Judiciary Committee, laid bare some of the Court’s political underpinnings and vulnerabilities. As Joan Biskupic, who has covered the Court for decades, wrote for CNN after the Sept. 27 hearings:
The judge who previously served as a top aide to President George W. Bush and worked for independent counsel Ken Starr’s investigation of President Bill Clinton tossed aside his earlier judicious language of neutrality. . . . [T]he result—of his rhetoric and the overall tenor of the nomination—means he could forever be marked as a politician on the bench rather than a neutral jurist.
Both the historical reality and the current moment demand something more than service to the “appearance and actuality” of the Court’s relationship to public opinion. They demand robust and meaningful public expression about the Court and its orientation to the public and politics, and that should include the right of citizens to criticize the institution forcefully and, if they wish, to direct their criticism at the Court on its “own front terrace,” on the plaza, where the criticism would be most visible and impactful for the citizens.
That would facilitate self-fulfillment and help society achieve stability, as the scholar Thomas Emerson once wrote, by allowing citizens directly to express themselves “in a release of energy, a lessening of frustration and a channeling of resistance into courses consistent with law and order.” All of which is to say: The First Amendment may not command that the plaza be a public forum, but Congress should act to designate it as such.