You don’t need a lawyer. A truck driver can tell the difference between the crowd that welcomes the Red Sox home after they’ve won the World Series and the sullen crowds still standing outside the homes of the conservative justices of the Supreme Court.
We all know the difference between a smile and frown, between waving hands gesturing people to come forward versus hands signaling people to stay away. The differences are grounded in the natural way people understand body language, and in the way they understand words as their meanings are settled in ordinary language.
Not only does everyone understand these things, they must in order to get on with daily life. Everyone understands these human basics — that is, unless he is Attorney General Merrick Garland and the young lawyers in the Department of Justice feeding him advice.
When he was asked at a congressional hearing about the unfriendly crowds gathered every day around the homes of Justices Samuel Alito and Brett Kavanaugh, the attorney general said the discretion to deal with the crowds rested with the Marshals’ Service, on the scene to protect the judges.
Michael Mukasey, the distinguished judge who became attorney general under George W. Bush, remarked in a public speech that this account of Garland’s was a transparent evasion: The Marshals’ Service, as he well knows, is under the governance of the attorney general. The responsibility for any willingness to leave conservative justices with hostile groups planted outside their doors rests with Garland.
