In the two weeks since an anonymous source leaked Justice Samuel Alito’s draft opinion that would overturn Roe v. Wade, there have been several protests against conservative Supreme Court justices at their homes. One took place in front of the home of Justice Brett Kavanaugh, one in front of the home of Chief Justice John Roberts and one in front of the home of Alito himself. None of the protests were rowdy or disruptive. There were no threats and no one was in danger.
The Washington Post editorial board condemned the protests as part of a “disturbing trend,” comparing it, obliquely, to totalitarianism: “Erasing any distinction between the public square and private life is essential to totalitarianism. It is crucial, therefore, to protect robust demonstrations of political dissent while preventing them from turning into harassment or intimidation.”
The response from official Washington was heated. In a tweet, Jen Psaki, the White House press secretary, wrote that while President Biden “strongly believes in the Constitutional right to protest,” that should “never include violence, threats, or vandalism.”
“Judges perform an incredibly important function in our society,” she continued, “and they must be able to do their jobs without concern for their personal safety.”
Republicans, of course, were the most upset. “Trying to scare federal judges into ruling a certain way is far outside the bounds of normal First Amendment speech or protest,” Mitch McConnell, the Senate minority leader, wrote on Twitter. “It is an attempt to replace the rule of law with the rule of mobs. It is unacceptable that Democrats cannot clearly denounce it.”
“They should haul all of these people down to the police headquarters,” Senator Marsha Blackburn of Tennessee declared. “They should book them for violating a federal statute. What they’re trying to do is change the outcome of a Supreme Court decision, and they’re doing it by showing force and intimidation.”
All right, where to begin?
First of all, absolute claims that it is never acceptable to protest at or near the home of a public official don’t stand up to any serious scrutiny. Here I’m borrowing from Aaron Ross Powell, a libertarian scholar, who laid this out persuasively on Twitter.
Ask yourself this question: Is there any circumstance in which violence is a legitimate response to the state? If you’re tempted to say no, remember that the United States was formed in the wake of a revolution. If you think the American Revolution was justified, then you think that there is at least one circumstance in which violence can be used in protest of the state. And if violence, the most extreme tactic, is permissible in some circumstances, then nonviolence — including the much less extreme tactic of nonviolent protest at an official’s home — must also be permissible in some circumstances.
Of course, we are not in the midst of a violent revolution, and a vast majority of Americans do not think we are in a place where political violence is justified. But if we do agree that there are imaginable circumstances where nonviolent protest of public officials at their homes is justified, then we’re really just arguing over whether these particular protests are justified. We’re making a judgment, in other words, about the substance of the protest. Opponents are saying they don’t think the end of Roe is serious enough to justify this form of protest. Defenders are saying that it is.
Then there’s the claim, from The Washington Post, that this protest is the latest in a new trend. But protests of this sort go all the way back to the revolutionary era, when crowds and mobs in Boston and other cities protested (and even attacked) British officials at their homes. In “Political Mobs and the American Revolution, 1765-1776,” the elder Arthur Schlesinger recounts the “pillaging of Lieutenant Governor Hutchinson’s mansion in Boston in August 1765 during the Stamp Act disorders.”
Not content with gutting the structure from ground to roof, the “hellish crew” scattered abroad Hutchinson’s historical papers and the manuscript of the second volume of his “History of Massachusetts Bay.”
Patriot elites, unsurprisingly, developed a theory by which these actions were justified. “Unconstitutional legislation, in Whig theory, created the need for constitutional self-defense,” the legal scholar John Phillip Reid explains in “A Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution.”
“Shall we submit to parliamentary taxation, to avoid mobs?,” John Adams asked. “Will not parliamentary taxation if established, occasion vices, crimes and follies, infinitely more numerous, dangerous, and fatal to the community?”
Adams hated mobs. But even they, he thought, served a purpose under the right circumstances. Or, as he wrote in a 1774 letter to his wife, Abigail: “These private mobs I do and will detest. If popular commotions can be justified in opposition to attacks upon the Constitution, it can be only when fundamentals are invaded, nor then unless for absolute necessity, and with great caution.”
He was making a judgment call. So are we. Does a judicial attack on the right to have an abortion justify the protest of Supreme Court justices at their homes?
It’s easy to see why Republicans say no; they not only want this outcome but also are deeply invested in the legitimacy of a court they worked so hard to shape. Allowing protests of this sort is counterproductive.
But from the perspective of a citizen who believes that the right to have an abortion should be enshrined in the Constitution — and who has no other way to persuade or influence or even speak to a Supreme Court justice — it makes complete sense. Even if the decision to overturn Roe v. Wade is set in stone, protest — on their streets, in front of their homes — allows those citizens to be heard.
As much as the Supreme Court and its defenders might like to pretend otherwise, the court does not actually exist outside of politics. We know this because of its past and we know this because of its present. Having captured the court for their own ends, conservative legal elites have not been shy about their efforts to pressure the court to rule in their favor.
Which is to say that in evaluating the recent protests, we have one important question to answer: Who has the right to speak directly to the Supreme Court? The elites who shape the court or the people who must live under it?
What I Wrote
My Tuesday column made the argument that even if the Supreme Court does not go after other precedents rooted in the right to privacy, the Republican Party will.
No one wages a generational battle to reshape American society for the sake of a partial victory. And for the reactionaries at the helm of the conservative movement, the end of Roe v. Wade is exactly that — a partial victory.
And my Friday column cast a skeptical eye on the argument that the end of Roe would somehow lead to more democracy.
That might be true, if Americans lived with fair and representative institutions. But they don’t. And even if they did, there’s more to democracy than just voting or the process of making a law. Which is to say that the pro-democracy argument against Roe v. Wade and the constitutional right to have an abortion falters on a few key realities. The first relates to democratic government, or the lack thereof, in the states. The second relates to the expansion of state power inherent in any effective law against abortion. And the third concerns the intimate relationship between bodily autonomy and political equality.
Now Reading
John Ganz on the scourge of sentimentality politics for Gawker.
Jan-Werner Müller on right-wing populism and the culture wars for The New Statesman.
Gerald Horne on W.E.B. Du Bois’s “Black Reconstruction” for The Nation.
Melissa Gira Grant on the criminalization of pregnancy for The New Republic.
Kerry Howley on the woman who helped kill Roe v. Wade in New York magazine.
Feedback If you’re enjoying what you’re reading, please consider recommending it to your friends. They can sign up here. If you want to share your thoughts on an item in this week’s newsletter or on the newsletter in general, please email me at [email protected]. You can follow me on Twitter (@jbouie) and Instagram.
Photo of the Week
I took this at the Virginia Air and Space Center in Hampton, Va., which is a wonderful place with a lot of great resources for young kids.
Now Eating: Salmon in a Bengali Mustard Sauce
We eat a lot of fish at home and this recipe, from the great Madhur Jaffrey, is in my regular rotation. The ground mustard in the spice aisle works fine for this, but the best approach is to crush brown mustard seeds into a powder using a mortar and pestle. You should serve this dish with plain basmati rice and a vegetable.
Ingredients
1 pound skinless salmon fillet
¼ teaspoon salt
¼ teaspoon ground turmeric
¼ teaspoon cayenne pepper
1 tablespoon ground mustard
another ¼ teaspoon cayenne pepper
another ¼ teaspoon ground turmeric
another ½ teaspoon salt
2 tablespoons extra virgin olive oil
¼ teaspoon whole brown mustard seeds
¼ teaspoon whole fennel seeds
2 fresh hot green chiles, slit slightly
Directions
Cut the fish into pieces that are about 2 inches by 1 inch and rub them evenly with the salt, turmeric and cayenne. Cover and set aside in the refrigerator for at least 30 minutes.
Put the ground mustard or mustard powder, cayenne, turmeric and salt in a small bowl. Add 1 tablespoon water and mix thoroughly. Add another 7 tablespoons water and mix. Set aside.
Pour the oil into a medium frying pan and set over medium-high heat. When hot, put in the mustard seeds. As soon as they start to pop, a matter of seconds, add the cumin and fennel seeds. Stir once and quickly pour in the mustard paste. Add the green chiles, stir and bring to a gentle simmer. Place the fish pieces in the sauce in a single layer. Simmer gently for about 5 minutes, or until the fish is just cooked through, spooning the sauce over the fish all the time.
The post The Push to Silence Protesters Over the Roe Decision appeared first on New York Times.
