Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 37 (1997)

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Cite as: 519 U. S. 357 (1997)

Opinion of Scalia, J.

complaints brought before them, the Court today announces that a complaint gives them, in addition, ancillary power to decree what may be necessary to protect—not the plaintiff, but the public interest! Every private suit makes the district judge a sort of one-man Committee of Public Safety. There is no precedent for this novel and dangerous proposition. In Madsen, the Court says, "it was permissible to move protesters off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks." Ante, at 375; see also Madsen, 512 U. S., at 769. But acknowledging, as we did in Madsen, that some remedial options are eliminated because they conflict with considerations of public safety is entirely different from asserting, as the Court does today, that public safety can provide part of the justification for the remedy.3 The only other case cited by the Court is Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U. S. 287, 294-295 (1941). Ante, at 375. But Milk Wagon Drivers upheld an injunction against a union's intimidation of storekeepers, not because "the public interest" demanded it, but because the storekeepers were customers of the plaintiff dairy, which it was the purpose and effect of the intimidation to harm. 312 U. S., at 294-295.

We have in our state and federal systems a specific entity charged with responsibility for initiating action to guard the public safety. It is called the Executive Branch. When the public safety is threatened, that branch is empowered, by invoking judicial action and by other means, to provide protection. But the Judicial Branch has hitherto been thought powerless to act except as invited by someone other than itself. That is one of the reasons it was thought to be "the least dangerous to the political rights of the [C]onstitu-3 Madsen also refers to "public safety" as one of the government interests on which the state court relied in justifying the challenged injunction, 512 U. S., at 768, but nothing in our decision approved or relied upon that feature of the state court's approach.

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