In Federalist No. 78, Alexander Hamilton wrote that the judiciary has "neither force nor will, but merely judgment." In order to exercise sound judgment, courts must adjudicate cases in an environment free of unlawful interference or intimidation.

Federal law reflects this recognition. Specifically, 18 USC § 1507 states: "Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer ... shall be fined under this title or imprisoned not more than one year, or both."

Upholding the validity of a state law prohibiting picketing near courthouses, the U.S. Supreme Court held: "It is of the utmost importance that the administration of justice be fair and orderly. This court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy." Cox v. Louisiana, 379 U.S. 536 (1965).

The recent unauthorized dissemination of the Supreme Court's first draft opinion in Dobbs v. Jackson Women’s Health Organization has sparked intense criticism of justices associated with its support. Given its unprecedented nature, the mere leak of the court's predecisional, deliberative work product may have been intended to bring public pressure to bear against sitting justices in a pending case.

Moreover, following the unauthorized release of the draft opinion, a misnamed advocacy group called Ruth Sent Us — she neither did nor would have — disclosed the residential addresses of Supreme Court justices and encouraged protesters to appear at their residences. The group's intent seems neither subtle nor ambiguous. On its website, the group disclosed the home addresses of "the six Christian fundamentalist Justices" and urged followers to "rise up to force accountability" at Catholic churches. Resulting public parading near the homes of justices necessitated the temporary relocation of at least one justice and his family. Virginia Gov. Glenn Youngkin and Maryland Gov. Larry Hogan deserve credit for urging state and federal intervention to protect the safety of justices and the integrity of court proceedings, but more should be done.

Attorney General Merrick Garland, himself a former federal judge and Supreme Court nominee, must ensure that anyone violating 18 USC § 1507 is held accountable for assaulting a "foundation of our constitutional democracy." In addition, Congress should amend existing law to enhance liability for individuals and organizations seeking to interfere unlawfully with the administration of justice.

In addition, Congress can help. The Racketeer Influenced and Corrupt Organizations Act established enhanced penalties for individuals and organizations that commit two or more specified "predicate" racketeering offenses, including bribery, witness tampering, and obstructing criminal investigations. The legislative intent supporting some of these RICO predicates — protecting criminal proceedings from unlawful interference — applies with equal force to preserving the "unhindered and untrammeled" exercise of the judicial function. Given the broad reach and precedential nature of judicial proceedings, the legislative justification to amend RICO to incorporate violations of 18 USC § 1507 is even more urgent and compelling. Perhaps senators or representatives who served as law clerks will agree and introduce legislation to protect courts from unlawful interference better.

Judges and the decisions they issue are not above criticism, nor should they be. But our First Amendment brooks no right to interfere unlawfully with the administration of justice or to influence the judicial consideration of pending cases unlawfully by parading at judicial buildings or residences.

Reacting to the leak of the Dobbs draft opinion, Justice Clarence Thomas, the court's longest-serving member, recently said: "I wonder how long we're going to have these institutions at the rate we're undermining them, and then I wonder when they're gone or they are destabilized what we'll have as a country."

Judicial independence is a touchstone of free government. Efforts to interfere unlawfully with the administration of justice comprise an assault upon constitutional government to which all branches of the government have a duty to respond.

Robert N. Tracci is senior assistant commonwealth's attorney for Louisa County, Virginia. He has served as chief legislative counsel to the U.S. House Judiciary Committee, deputy assistant attorney general and special assistant United States attorney, and as the elected commonwealth's attorney for Albemarle County, Virginia.