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Republican senator’s push to arrest abortion protesters meets GOP resistance

Some GOP senators say Sen. Tom Cotton is going too far with his call to arrest and prosecute protesters outside the homes of Supreme Court justices.
Sen. Tom Cotton, R-Ark., during the Senate Armed Services Committee hearing in Dirksen Building on May 5, 2022.
Sen. Tom Cotton, R-Ark., at an Armed Services Committee hearing in Washington on Thursday.Tom Williams / CQ-Roll Call Inc. via Getty Images

WASHINGTON — Sen. Tom Cotton, R-Ark., wants the abortion-rights protesters demonstrating in front of the homes of Supreme Court justices to be swiftly arrested and prosecuted by the Justice Department.

Some of his Republican colleagues, however, say that would go too far and that it could violate First Amendment protections.

“I think if they’re being peaceful and are staying off their property and are not disrupting neighborhoods or causing or inciting fear, it’s probably a legitimate expression of free speech,” Sen. Cynthia Lummis, R-Wyo., a former member of the conservative House Freedom Caucus, said Wednesday.

“First Amendment rights are so, so special. … We should all be erring in favor of the First Amendment, in favor of freedom of speech, in favor of freedom of religion, in favor of the freedom of assembly,” she said. “Because if we start fearing our rights to speak and express our religious convictions, and if we fear assembly, the consequences of parsing those rights are extremely dangerous.”

Sen. Mike Braun, R-Ind., said he, too, believes peaceful protests — even outside the homes of justices — is protected speech.

“I’m a First Amendment guy, and I think that cuts both ways,” Braun said in an interview. “If they’re there and they’re doing it peacefully, you know, I’m for that ability on either side of the political spectrum.”

Protesters have been chanting and holding up signs in front of the homes of three conservatives: Chief Justice John Roberts and Justices Brett Kavanaugh and Samuel Alito, who wrote the leaked majority draft opinion that would overturn the constitutional right to abortion enshrined nearly a half-century ago in the landmark Roe v. Wade decision.

More demonstrations are planned for Wednesday night at conservative justices’ homes in the Washington area.

In a stern letter Tuesday to Attorney General Merrick Garland, Cotton slammed “left-wing mobs” that have protested outside the homes of conservative justices after the draft opinion leaked.

Cotton, who said in 2020 he supported the use of military force to suppress the protests against police violence sparked by the murder of George Floyd, called the recent protests illegal and a “blatant violation” of a 1950 law that says anyone who “pickets or parades” near a building or residence used by a judge with the intent of influencing the judge shall face fines or imprisonment. If the Justice Department doesn’t act, Cotton told Garland, perhaps the next Congress should begin impeachment proceedings.

Cotton, a potential 2024 presidential candidate, said Wednesday in an interview: “There is a federal law that prohibits the protesting of judges’ homes. Anybody protesting a judge’s home should be arrested on the spot by federal law enforcement. If [protesters] want to raise a First Amendment defense, they are free to do so.”

“I don’t advocate for arresting people protesting on public streets in Washington, D.C., the nation’s capital. I do believe they should be arrested for protesting in the homes of judges, jurors and prosecutors,” Cotton said. “Federal law prohibits an obvious attempt to influence or intimidate judges, jurors and prosecutors.”

Cotton spoke the same day Senate Republicans — along with Sen. Joe Manchin, D-W.Va. — blocked a Democratic-backed bill that would have codified abortion rights into federal law.

Asked whether he believed people could legally protest at the home of an elected official such as himself, Cotton replied: “I generally suggest protesting in public spaces, not in front of public homes of any person. But that’s not against federal law. That’s why Chuck Schumer is wrong.”

Schumer, D-N.Y., the Senate majority leader, told reporters Tuesday that he was OK with people peacefully protesting outside the justices’ homes, saying such demonstrations are “the American way” and noting that people protest in front of his home in New York “three, four times a week.”

The White House has stood behind the protesters — so long as they remain peaceful.

White House press secretary Jen Psaki said Tuesday that President Joe Biden believes “violent threats and intimidation of any kind have no place in political discourse.” But she said the White House understands the “outrage” in the country over the potential loss of abortion rights.

“And we believe, of course, in peaceful protests,” she said. “And we certainly continue to encourage that outside of judges’ homes, and that’s the president’s position.”

Cotton isn’t on an island. Senate Minority Leader Mitch McConnell, R-Ky., said the protests were “far outside the bounds of normal First Amendment speech or protest,” adding, “It is an attempt to replace the rule of law with the rule of mobs.”

And Wednesday, the top Republican on the Judiciary Committee, Sen. Chuck Grassley of Iowa, demanded in a letter to Garland that the Justice Department protect justices and prosecute the targeted justices' homes.

At the state level, Maryland Gov. Larry Hogan tweeted Wednesday night that he and Virginia Gov. Glenn Youngkin had called on Garland to “provide adequate resources” to ensure the safety of Supreme Court justices and their families. In their letter, the GOP governors asked the Justice Department to enforce the 1950 law cited by Cotton.

Justice Department spokesman Anthony Coley said in a statement that Garland continues to be briefed on security matters related to the justices and has directed the U.S. Marshals Service to “help ensure the Justices’ safety” by assisting the Supreme Court police and the court marshal.

Some Republican senators said there can be a middle ground when it comes to the demonstrations.

Sen. Roger Marshall of Kansas, the son of a police officer, said he would like authorities to engage in dialogue with and issue warnings to the protesters before they make any arrests.

“I would prefer a softer approach. I would prefer some type of warning to the crowd, much like getting a speeding ticket,” Marshall said. “Sometimes there’s a place for a warning, so I’d like to see those crowds get warnings before we move all the way to prosecution.”

Other GOP senators said they were unsure whether protesting outside a judge’s home qualifies as breaking the law, but they also condemned the recent demonstrations.

“Whether or not it’s legal, it’s inappropriate, and they should not be harassing the justices,” said Sen. Susan Collins of Maine, who called police this week after protesters wrote messages in chalk outside her home urging her to vote for a Democratic abortion rights measure.

Sen. Mitt Romney, R-Utah, who’s also had protesters outside his home before, said the Supreme Court grounds are where people should make their voices heard.

“I think generally that a justice’s home should not be the place that we protest,” Romney said. “We've got a Supreme Court building, and that’s probably the best place to do that."

CLARIFICATION (May 12, 2022, 9:17 a.m. ET) A previous version of this article had an incorrect reference in a quote from Sen. Tom Cotton about who could raise a First Amendment defense of protests outside the home of Supreme Court justices. He was referring to protesters, not fellow Republican senators. The quote has been corrected: “If they [the protesters] want to raise a First Amendment defense, they are free to do so.”