Protect the justices, no matter the outcome on abortion

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.

Mao Zedong, driven by ideology, was a communist tyrant who imposed the Great Leap Forward on China, leading to the deaths of 45 million people, mostly from starvation. Joseph Stalin and Adolf Hitler were fanatical haters and killed millions, too. Vladimir Putin seems driven by a need to preserve his own power and accumulate wealth while he still can. If there is an ideology to Putin’s fanaticism, it is more ruse than reason.

America’s fanatics — yes, we’ve had our share — have tended to be individuals with much more limited goals — and we can be grateful for that. But that doesn’t make them trivial.

Some have had clear agendas or picked 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 antiabortion 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 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 leaker should step into the light, identify himself and suffer the consequences. That would require courage and lift a cloud from the innocent. Otherwise, the sooner the leaker is found, identified and punished, the better.

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 first-year 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 — reasonable restriction on abortions in the states where legislatures pass them — 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. (To its credit, the Senate unanimously passed a measure providing protection to justices’ families this week.)

There is already a federal law that prohibits demonstrations to influence a judicial proceeding. Garland needs to enforce it. He needs to narrow the possibility of the sort of shocking act that has tortured our politics since the Civil War. 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.