This is a part of Disorder in the Court, a weeklong series on the legal press and the most explosive Supreme Court in generations: how we cover it, how we’ve failed, and how we can do better.
To call the plaza in front of the Supreme Court “nondescript” might be overstating it. The small rectangular concrete slab at One First Street is little more than a widened sidewalk, variously bisected by bike racks and fenced in on one side by black metal pylons. The 97 bus stops out front.
It’s the only gathering-permitted area that exists near the base of the marble stairs that lead to the iconic column facade, behind which the justices, their clerks, and their staff conduct the business of the highest court in the land. At capacity, the berth can hold maybe 1,500 people, though it was clearly not designed for—and is still not really encouraged for—that purpose. And yet, for a little over a year, this platform has been one of the most important theaters of protest in America.
The court has made clear that this is the closest the people can get. In 2016 it upheld an earlier ruling that found constitutional a 1949 federal law prohibiting protests anywhere near the actual chamber itself; the court decided that First Amendment free-speech guarantees are suspended once you hit the marble plaza and climb the stairs. Getting inside the court is not easier: many of the chamber’s 439 seats are given out to friends of the lawyers arguing. The paltry 50 seats publicly available are given out on a first-come, first-served basis, and require attendees to be in line before sunrise to claim a spot. (Conservative groups have been known to pay professional “line-sitters,” often homeless people, to sleep in line and secure their position.) That protesters are permitted to gather on the sidewalk but no closer seems to tidily underscore the court’s relationship to the people for which it makes its decisions.
Soon after that 2016 decision was made, the supposedly nonpolitical court began its transformation to what it is today: First, a president who had not received a majority of the popular vote appointed a justice to the bench (Neil Gorsuch) to fill a seat that had been kept open for him, in a process that obliterated previous norms. Then, that same president appointed a second justice, whose confirmation hearing included credible allegations of sexual assault but no actual, legitimate process for investigating those allegations. Finally, weeks before the 2020 election, the death of Ruth Bader Ginsburg allowed the same Republicans, who had previously kept a seat open for an entire year pending a presidential election, to rush Amy Coney Barrett onto the bench. The packing of the court happened in real time, in public, before every American’s own eyes. The new conservative majority made clear that it would remain as insulated from public accountability in issuing decisions as it had in its formation. And then the court got down to business.
With little recourse to be found anywhere else, people started to show up. Protests for everything from abortion rights to gun control to student-debt cancellation to environmental protections to voting rights—all of them policy issues being decided not in the nearby Capitol building, where the elected legislative branch is housed, but in the chambers of the secretive court that seems to answer to no one—have descended on that patch of concrete. Often, activists for multiple different groups are all there at once. “Sometimes you’ll have five different issues areas all in that same spot, all mad about different things,” said Melissa Byrne, founder of We, the 45 Million, a student-loan-forgiveness group.
“The court has become the place where politics are happening, where they’re moving an agenda. They’re like politicians,” said Rachel O’Leary Carmona, executive director of the Women’s March. “They’re unelected but also shielded from the structures of accountability of our government. The truth of those protests is that there’s no mechanism by which we can create accountability.”
Yes, protests outside the Supreme Court have happened intermittently for years, on both sides of the political spectrum. In the lead-up to the Clarence Thomas confirmation vote in 1991, left- and right-wing demonstrators came to the front of the court because there seemed to be nowhere else to go; they returned for the contentious Kavanaugh hearings.
And for decades, far-right conservative activists have staged demonstrations out front, correctly understanding the space as their stage, and its interior as their target.
“For years, on every anniversary of Roe v. Wade, these anti-choice protesters would descend on the court and demonstrate,” said Christopher Kang, co-founder and chief counsel of Demand Justice, a progressive judicial advocacy organization. Everyone from anti-abortion hard-liners to Women for Trump to the Proud Boys has turned up there over the years.
But this new wave of relatively constant protest has been different. Since the death of Ruth Bader Ginsburg, when people gathered both to mourn and to protest the 6–3 conservative supermajority that would come next, liberal organizations have become regulars on this bit of sidewalk too, making One First Street one of the most vibrant locations of political protest in the country. It’s a fitting cap to the yearslong process that fully politicized those who work within the walls of the building.
Sometimes it’s spontaneous; other times not. The court announces some decisions throughout the year, though it holds its biggest cases for June. But there’s no way of knowing which day will hold a decision on any given issue.
“It’s built to intentionally prevent protest. All the decisions drop at once, and the court is counting on a short news cycle,” said Kang. “This term is going to be worse than the last, and you’ll see more of this protest culture as well.”
The last term was pretty bad. Really, it started in May, when the decision in Dobbs v. Jackson Women’s Health Organization was leaked, revealing that the court would indeed take the opportunity of its first full term with its hard-won extreme conservative majority to undo almost half a century of precedent. The news that the right to abortion would no longer be federally protected caused so much fury that 8-foot, non-scalable fences were erected in front of the building, walling off even the small area where protests had previously been permitted.
When the decision was announced, without warning, in late June, one day after another precedent-shattering decision on gun control, thousands descended on the court from all over the country, many spontaneously, some in protest and some in victory. Forced to stay farther from the building than usual, the protesters overwhelmed the small, cordoned-off area and spilled into the street. Demonstrations of some sort lasted for days, and became commonplace; the black fencing remained in place until the end of August.
“It’s super narrow, can’t fit a lot of people in it, fills up really fast, and creates an uncomfortable dynamic physically,” said Shaunna Thomas, co-founder and executive director of the women’s rights group Ultraviolet, who has been to the courts to protest on behalf of abortion rights. Oftentimes the police will use the bike racks to hem in protesters further, a process called kettling, which makes that cramped feeling even more extreme.
Despite those constraints, One First Street has begun to evolve, from a mostly anti-abortion stomping ground into a space that frequently hosts liberal groups. Behind that transformation is a sad political fact: You protest when you don’t have other good ways of exerting power. Of course, conservatives have always had multiple ways of influencing the courts: Republican megadonor Harlan Crow’s deluge of lavish, undisclosed gifts for Clarence Thomas illustrate that readily. But the inversion of who’s outside One First Street is an apt metaphor for how profoundly power has shifted at this court over the past few years.
It’s not just seasoned activists showing up either. This court’s rulings are frequently at profound odds with the public’s wishes. A recently published survey from NORC at the University of Chicago found that in 2022 just 18 percent of Americans had a great deal of confidence in the court, down from 26 percent in 2021, the lowest mark since the group began tracking it 50 years ago. The outpouring of frustration with this court, its composition, ethical lapses, and opinions, is pulling people of all kinds to its sidewalk.
Which is not to say that conservative activists have become invisible—they still make routine appearances. Though their numbers are smaller, their displays have been more animated. “I’ve never been at the court for a rally that hasn’t featured really aggressive anti-abortion movement activists who are gathering or staging counterprotests,” Thomas said.
But this year, March for Life, arguably the most visible anti-abortion activist group that organizes in D.C., did not stake out its position in front of the court as it had for 49 straight years since Roe’s initial decision. Instead, it posted a notice on its website:
“This year, rather than marching to the steps of the Supreme Court, where we have for decades asked our highest Court’s Justices to undo the destructive decision that was Roe v. Wade, we will now march to a new front in our battle for life, the steps of the United States Capitol.”
The small stretch of sidewalk outside One First Street was left to those who still have business—if not purchase—before the court.