A newly uncovered document reveals that the US supreme court sought to beef up judicial protection, while also reducing public scrutiny of the court’s doings, before the court’s controversial decision to overturn Roe v Wade.
The heavily redacted memorandum of agreement (MOA) on security is dated March 2022, and was obtained by the Guardian after being recently surfaced by governmentattic.com.
The document shows that the US marshals service and the supreme court of the United States police department (SCUSPD) agreed to enhance cooperation and intelligence sharing and provide protection for retired judges on request. It also mandated that the cost of USMS’s enhanced cooperation would be paid for by them and the department of justice, rather than being added to the judiciary’s budget.
Crucially, the MOA mandates that the court would maintain “exclusive legal custody and control” of all security-related records, even those in USMS possession. That means those records would be explicitly excluded from Freedom of Information Act (Foia) requirements, and hidden from public view.
Even temporary USMS possession of a document, the MOA underlines, “does not operate in any way to divest the Supreme Court of complete and exclusive legal control of such records”.
Gabe Roth, executive director of Fix the Court, a non-profit that campaigns for greater transparency and accountability of the supreme court, said that the record-keeping arrangements made it “sound like Scotus is upset that you and I and others keep requesting travel records of the justices via Foia, and they’re trying to get around sharing them under the law”.
He added: “But since Foias are by nature backwards-looking in time, often by several years, I can’t imagine what the security implications of knowing that, say, ‘Justice X had a deputy marshal accompany her to a Harvard speech in 2023’ would be.”
The MOA arrives amid public view of the supreme court remaining at a historic low. Judgments by the conservative super-majority court have had a huge impact on American life in recent years on a range of issues, including abortion rights, the environment and the role of government in regulating corporations and industry.
There have also been growing security concerns around the court. In June 2022, police thwarted a plot to kill justice Brett Kavanaugh and arrested a man who brought a pistol, knife, zip-ties and pepper spray to the justice’s home with the intent of killing him.
Notably, the MOA was signed after deliberation on the Dobbs v Jackson Women’s Health Organization case began on 1 December 2021. The case came down after the denial of a request to injunct Texas’s so-called “heartbeat” abortion bill, SB8, in September 2021, and after the court ruled that the Occupational Safety and Health Administration’s enforcement of a vaccine mandate for large employers was unlawful.
It also came after Chuck Grassley’s warning on 2 December 2021 in a statement to the Senate judiciary committee that “Democrats and activists on the left” were fomenting “revolution” if the court chose to “outlaw Roe v Wade”. In that same statement, the Republican senator from Iowa also conflated political violence – such as the 2020 assassination of Daniel Anderl, son of federal judge Esther Salas – with political protest.
“Judges and their family members have been hurt and killed. We’ve also seen courthouses under siege by leftwing groups in places like Portland, Oregon,” he wrote.
Grassley’s statement was in support of a sweeping bill, titled the Daniel Anderl Judicial Security and Privacy Act of 2021. That bill passed into law the next year and outlawed the publication of personally identifying information about federal and supreme court justices online by data brokers and federal agencies.
The law passed despite objections by public interest groups who said it could chill free speech and deter criticism of the judiciary.
In the weeks after the MOA was signed, a supreme court leak foreshadowed the judicial repeal of Roe v Wade in the Dobbs decision that June.
Paul Collins, professor of political science at the University of Massachusetts, said that “the timeline” of the MOA “is interesting”.
“It looks to me like the signing of the MOA is at least partially related to the progress of some of the supreme court’s most high-profile cases. This suggests the marshal service and supreme court police may give some consideration to the court’s cases in formulating their protection plans,” he said.
“Since the court is unlikely to remove itself from deciding highly controversial issues anytime soon, this may see the supreme court experience a trend of enhancing the protection of judges more and more over time.”
The MOA came at the beginning of a steady ratcheting up of spending on security at the court, with justices asking for and receiving boosts in each subsequent year.
For example, in March 2024, USMS asked for $38m in funding for judicial security, along with another $10m to comply with provisions of the Daniel Anderl law.
Also, the stopgap funding measure passed in late December 2024 included a combined $25m for USMS and SCUSPD to provide 24-hour security at the nine supreme court justices’ private residences.
The MOA attributes increased security arrangements to how “threats on federal judges skyrocketed during the first Trump Administration, and reached an all-time high in 2022 before coming down in 2023”.
“As a result,” the MOA continues, “protecting the safety of judges, and their family members, has been prioritized by Congress, the Marshall Service, and the Supreme Court Police.”
The Guardian contacted USMS and the supreme court’s public information office for comment. The court did not respond.
A USMS spokesperson wrote that winter storm conditions in Washington DC may make it difficult to provide comment from the appropriate personnel.
Collins notes that any heightened risks to federal judges can be attributed, mostly, to Donald Trump, who has frequently lambasted judges and the broader judicial system amid his ongoing trials and cases.
“This increase in threats against judges can be linked directly to Trump’s personal attacks on judges and their families, something no president has ever done before,” he wrote.
“There is little reason to believe that Trump will change his playbook during his second term with regard to his willingness to attack judges, and even their family members. This makes the protection of judges and their family members especially important.”