Episode Details

Hello again, friends.

After pro-choice protesters showed up outside the homes of Justice Samuel Alito and two other justices — peacefully chanting while walking in the street that lacked sidewalks — the editorial board of the Washington Post described such protests as “problematic” because they “bring direct public pressure to bear on a decision-making process that must be controlled, evidence-based and rational if there is to be any hope of an independent judiciary.”

I’m sympathetic to this view. It’s one thing to picket the Supreme Court as an institution; it’s quite another to demonstrate in front of the homes of individual justices. But surely the pro-choice protesters have a First Amendment right to be heard. I’m reminded of a 1994 case (Madsen v. Women’s Health Center, Inc.) in which the Supreme Court upheld the First Amendment rights of anti-abortion protesters to picket the residences of employees of an abortion clinic, saying the ordinance barring such protests within 300 feet of such residences was too broad.

The underlying question is how to weigh the First Amendment rights of protesters against the privacy rights of individual justices. The irony, of course, is that Justice Alito’s leaked opinion finds no right to privacy in the Constitution.

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Alito’s leaked decision has led me to reflect back on my years briefing and arguing cases before the Supreme Court almost fifty years ago. The Court I argued before understood that its role was to balance the scales of justice in favor of the powerless. The two political branches of government (Congress and the executive branch) could not be relied on to do this.

Republican appointees to the Supreme Court understood this role as did Democratic appointees. Even Richard Nixon’s appointees — Harry Blackmun, Lewis Powell, and Warren Burger — exemplified this. It was Blackmun who wrote the Court’s 1973 decision in Roe v. Wade, and Powell and Burger joined him, as did four Democratic appointees to the Court — William O. Douglas, Thurgood Marshall, William Brennan, and Potter Stewart.

The cases I argued were insignificant. I was a rookie in the Justice Department who was given either sure winners or sure losers to argue because the Department didn’t want to take a risk on a rookie — a wise move. (At my first argument, I mistakenly referred to Justice Stewart as Justice Brennan, which caused the two of them to guffaw and me to be mortified.)

But I was in awe of that Court.

I especially recall Douglas, who had recently suffered a stroke and was in obvious discomfort, looking sharply at me as I made my arguments. Here was the justice who wrote the 1965 decision in Griswold v. Connecticut, finding that a constitutional right to privacy forbids states from banning contraception — a right that would be jeopardized by Samuel Alito’s current analysis because, again, Alito doesn’t recognize a privacy right in the Constitution.

Douglas was also the man who decided that the Vietnam war was illegal and issued an order that temporarily blocked sending Army reservists to Vietnam. He was the justice who wrote in the 1972 case Sierra Club v. Morton that any part of nature feeling the destructive pressure of modern technology should have standing to sue in court — including rivers, lakes, trees, and even the air — because if corporations (which are legal fictions) have standing, shouldn’t the natural world?

Sitting not far away from him on the bench was Thurgoo