DOJ Memos Dissuaded Marshals From Arresting Protestors at SCOTUS Justices’ Homes: Sen. Katie Britt

Law enforcement officers stand guard as abortion rights activists with Our Rights DC march in front of Supreme Court Justice Brett Kavanaugh's house on June 29, 2022, in Chevy Chase, Md. Over the last couple months, abortion rights activists have staged protests against the five conservative U.S. Supreme Court Justices. The Supreme Court’s recent decision in the Dobbs v Jackson Women’s Health case overturned the 50-year-old Roe v Wade case and erased federal protection to abortion. Photo by Anna Moneymaker/Getty Images

A Senate Republican revealed during a March 28 budget hearing that an internal Department of Justice (DOJ) memo dissuaded U.S. Marshals from arresting protestors in violation of laws against picketing the homes of judges.

The materials (pdf) revealed during the hearing show that U.S. Marshals were explicitly directed to not arrest protestors at the homes of Supreme Court (SCOTUS) justices.

“People want justice to be blind,” said freshman Sen. Katie Britt (R-Ala.), who unveiled the findings during a Senate Appropriations Committee hearing.

Section 1507 of the U.S. Code prohibits the picketing of SCOTUS justices or other federal judges to change the outcome of a legal case. But when protestors demonstrated at the homes of conservative justices to protest their leaked abortion decision in June 2022, U.S. Marshals made few arrests in connection to the statute.

This wasn’t a mistake, Britt revealed. Rather, she showed that a DOJ memo had directly dissuaded agents from making arrests on the basis of Section 1507, instructing them to arrest protestors only as a “last resort” to protect the justices.

Section 1507 explicitly prohibits “picketing” or “parading” near the residences of judges or justices in order to influence the outcome of a case.

A few weeks ago, U.S. Attorney General Merrick Garland fielded questions from the Senate Judiciary Committee on his agency’s failure to prosecute those picketing the homes of justices.

Pro-abortion protesters outside the home of U.S. Associate Supreme Court Justice Brett Kavanaugh in Chevy Chase, Md., on May 11, 2022. Kevin Dietsch/Getty Images

During that and other testimony, Garland has insisted that the decision to arrest protestors lies with U.S. Marshals.

“U.S. Marshals have the authority to arrest anyone under that statute or any other federal statute,” Garland said. “The attorney general does not make the decision to arrest. The Marshals on the scene—they do make the decision of whether to arrest.”

But Britt said the newly uncovered materials used to train Marshals to protect the homes of SCOTUS justices show that they were “actively discouraged” from making arrests on grounds of this statute.

“Those materials show that the Marshals likely didn’t make any arrests because they were actively discouraged from doing so,” she said.

The training materials told the Marshals “to avoid, unless absolutely necessary, any criminal enforcement action involving the protestors.”

Marshals were also told that “making arrests and initiating prosecutions is not the goal of the [Marshal Service] presence at SCOTUS residences.”

“The ‘not’ is actually italicized and underlined,” Britt noted.

The next slide of the training stated “not to engage in protest-related enforcement actions, beyond those that were strictly and immediately necessary and tailored to ensure the physical security of the justices.”

Marshals were also explicitly instructed to not enforce Section 1507, as training materials informed them that there “may be a First Amendment right” to protest at the homes of SCOTUS justices.

“Regardless, any arrests of protestors are a last resort to prevent physical harm to the justices or their families,” the training materials read.

Garland Claims Ignorance

Garland also appeared before the panel on March 28 to testify on behalf of the DOJ for President Joe Biden’s proposed budget.

When grilled about the training materials, Garland claimed that he had never seen them before.

“Mr. Attorney General, were you, at any point before your testimony in front of the Judiciary Committee, aware of these training materials or the fact that the Marshals had been heavily discouraged from making arrests under Section 1507?” Britt asked.

Garland said, “This is the first time I’ve seen this slide.”

U.S. Attorney General Merrick Garland testifies before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill on March 1, 2023. Chip Somodevilla/Getty Images

But Garland said despite appearances to the contrary, Marshals were still theoretically permitted to make arrests.

“[The Marshals’] first and principle job is to protect the lives and property of the members of the court,” he said.

Garland also said he was the first attorney general to ever order the Marshals to protect the homes of SCOTUS justices.

“That’s their first priority,” he said, “but that doesn’t mean they are in any way precluded from bringing other kinds of arrests.”

Britt concluded her questioning with a plea for Garland to look into the issue and amend his comments to the Judiciary Committee if needed.

“There’s nothing to amend because I’ve never seen those slides,” Garland said.

Britt said, “It’s clear the Marshals were given a different directive.”

Garland has faced allegations of directing the DOJ to partisan ends from House Republicans, who are currently mounting a probe into the weaponization of the federal government. Critics have said that Garland didn’t enforce Section 1507 because of sympathy with the protestors’ left-wing positions; Garland has continuously claimed that he has no influence over arrests.