Va., Md. leaders: Supreme Court justice safety request raises First Amendment concerns

After a controversial decision to revoke the nationwide right to an abortion — throwing out Roe v. Wade and Casey v. Planned Parenthood — sparked protests near justices’ homes, Supreme Court officials asked that Maryland and Virginia leaders do more to protect the justices. By Sunday, all but Virginia Gov. Glenn Youngkin responded to the high court.

Supreme Court Marshal Gail Curley originally penned the letter, asking that state and local law enforce their respective picketing laws near the homes of Supreme Court justices.

Montgomery County Executive Marc Elrich, in a written statement to WTOP, said that he had yet to receive a letter from the Supreme Court and decried the court’s decision to distribute the letter to the press. He said he had not been contacted by the court.

“It is very troubling that the Court would take this approach,” Elrich said. “If the Marshal is concerned about security, then she and her staff should communicate directly with our police chief, myself, and my staff rather than having a letter released to the press.”

Additionally, Elrich said that the court should speak directly with executives when “safety, security and legal rights and protections of Montgomery County residents” are at issue.



“I have spoken with Police Chief Marcus Jones, and he is not aware of any requests for additional security assistance,” he said. “Quite frankly, discussing security concerns publicly is irresponsible and disappointing behavior.”

At this time, he approves of the Montgomery County Police Department’s job of balancing “security” and “the First Amendment rights of protestors.

“It is noteworthy that the primary responsibility for the safety of the Supreme Court justices and their families lies with the federal government,” Elrich said. “Under federal laws, the Marshals can arrest an individual who is in violation of a federal law.”

Fairfax County officials say they already received the letter and that their stance remained unchanged.

“The law cited in the letter is a likely violation of the First Amendment, and a previous court case refused to enforce it,” Fairfax County Board of Supervisors Chairman Jeffrey McKay said in a joint statement with the county’s police department.  “As long as individuals are assembling on public property and not blocking access to private residences, they are permitted to be there.”

The department’s spokesperson added that it, too, is balancing “First Amendment protected speech and the right to peacefully assembly” with its responsibility to “maintain community safety.”

“FCPD works with its regional partners ahead of all major events, including the Virginia State Police (VSP) and others,” the department spokesperson said. “This high level of cooperation is necessary as events throughout the region frequently cross boundaries and require a regional response.”

Gov. Larry Hogan’s office responded to the Supreme Court’s concerns with similar pushes for the federal government and Attorney General Merrick Garland to “enforce the clear and unambiguous federal statutes on the books that prohibit picketing at judges’ residences” — federal action followed an apparent assassination attempt on Justice Brett Kavanaugh.

“Had the marshal taken time to explore the matter, she would have learned that the constitutionality of the statute cited in her letter has been questioned by the Maryland Attorney General’s Office,” Hogan said through spokesperson Michael Ricci.

Hogan also said that state and local officers have been present and protecting communities daily.

“In light of the continued refusal by multiple federal entities to act, the governor has directed Maryland State Police to further review enforcement options that respect the First Amendment and the Constitution,” the statement concluded.

Gov. Youngkin previously joined Gov. Hogan in requesting the Department of Justice “provide adequate resources to keep the Supreme Court justices and their families safe amid ongoing protests at their home.”

In a statement, Youngkin spokesman Christian Martinez said: “The Governor agrees with the Marshal that the threatening activity outside the Justices’ homes has increased. He welcomes the Marshal of the Supreme Court’s request for Fairfax County to enforce state law as they are the primary enforcement authority for the state statute. The Governor also made that request of Chairman McKay in recent weeks.

Additionally, the Attorney General of the U.S. should do his job by enforcing the much more robust federal law. Every resource of federal law enforcement, including the U.S. Marshalls, should be involved while the Justices continue to be denied the right to live peacefully in their homes. The Governor remains in regular contact with the justices themselves and holds their safety as an utmost priority. He is in contact with state and local officials on the Marshal’s request for assistance and will continue to engage on the issue of the Justice’s safety.”

WTOP’s Shayna Estulin contributed to this report.

Ivy Lyons

Ivy Lyons is a digital journalist for WTOP.com. Since 2018, they have worked on Capitol Hill, at NBC News in Washington, and with WJLA in Washington.

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