Must protect justices

Fanatics come in all shapes and sizes, all ages and eras. They are usually driven by ideology or an insatiable thirst for power. As a rule, they either target their violence at individuals or at groups.

Some have clear agendas or pick their targets with cruel intent. “Unabomber” Ted Kaczynski threatened and killed scientists, technologists and other heroes of progress until apprehended in 1996. Scott Roeder was an anti-abortion extremist who shot and killed George Tiller, a physician who performed abortions, in Wichita in 2009. James T. Hodgkinson tried to murder Republican members of Congress on a baseball field near Washington, D.C., in 2017.

Not all fanatics are violent, and it is unlikely that violence (or anything like it) was the goal of whoever leaked the draft of the forthcoming Supreme Court ruling on abortion. But it is not too much to suggest that the leak might lead to violence anyway, or that such a danger ought to have been foreseeable by the leaker.

At the moment, Chief Justice John Roberts Jr. has launched an investigation to find the leaker, who is almost certainly a Supreme Court employee. The leaker’s decision to disclose a draft decision to a news organization has left a deep scar on the court, damaged its credibility, and surely shredded the fragile trust that exists among the nine men and women who wear the robes.

The leak has done incalculable damage. But more could result. Will the leak also lead to violence, intended or not, now that abortion rights activists are protesting outside the homes of Supreme Court justices? Will the leaker be held accountable for other repercussions that arise from their actions?

“Proximate cause” is a concept that every firstyear law student must master. It is a certainty that every law clerk on the Supreme Court knows the doctrine well: an event sufficiently related to an injury that the law deems the event to be a cause of that injury.

Was the leak of draft opinion the proximate cause of the unlawful demonstrations in front of the homes of Supreme Court justices? Even the slowest first-year law student would figure out the answer is yes.

But what if some protester escalates matters further? Abortion is no longer an issue on which the clear middle ground is defended by many. In such an environment, extremism flourishes. Someone might storm a judge’s office, or house, or worse. Federal judges have long suffered from acts of murderous violence and threats of the same.

Attorney General Merrick Garland used to be a court of appeals judge. He knows the issues of judicial protection as well as anyone. As a former chief judge on the U.S. Court of Appeals for the D.C. Circuit, he was at times responsible for safeguarding the federal courthouse. A commitment to protect the justices and their families must be visible, must be continuing and must deter.

There is already a federal law that prohibits demonstrations to influence a judicial proceeding. Garland needs to enforce it.

We know what fanatics are capable of. It is up to the attorney general, working with the chief justice, to anticipate and protect, not sit back and apologize come some dreadful day.