Centrist and conservative commentators are saying the recent pro-abortion rights protests outside the houses of conservative Supreme Court justices have crossed a line. These are mobs of harassers who have breached the acceptable parameters of protest, critics contend. But such arguments rest in large part on the myth of an apolitical judiciary. Looked at another way, the protests are salutary rather than destructive, bringing something to bear upon the court that by design it has been always been shielded from: democratic energy.
The leaked draft Supreme Court opinion that would overturn Roe v. Wade has sparked protests across the nation. The rage is understandable: Nearly two-thirds of Americans want to keep Roe v. Wade in place, and a majority of the women of childbearing age in the U.S. live in states where their abortion rights would be imperiled if the draft opinion becomes final.
The judicial branch, just like the executive and legislative branches, is involved in the business of politics.
But demonstrations outside the houses of Justice Brett Kavanaugh and Chief Justice John Roberts in recent days have generated backlash this week from a number of talking heads.
“Don't picket judges at home. It's wrong,” tweeted David Frum, a writer at The Atlantic and a former George W. Bush official.
“This is wrong, stupid, potentially dangerous, and politically counterproductive,” tweeted Paul Begala, a former Bill Clinton strategist, regarding a video of the protests outside of Kavanaugh’s house.
“Why did the WH [White House] refuse to denounce targeting of SCOTUS justices? Where are responsible Dem voices condemning this?” tweeted Stephen Hayes, editor of The Dispatch, in response to the same video.
Frum, Begala, Hayes and co. seem to believe the impropriety of the protests is self-evident. Protesting outside a justice’s home is seen as inherently inappropriate because it is seen as a breach of the tradition of public deference toward the justices, and a kind of harassment.
But what exactly are the alternatives for the citizenry?
The very nature of being a Supreme Court justice involves insulation from any kind of engagement with regular citizens. These people make enormously influential decisions about the lives and liberty of all Americans, yet they are unelected, appointed based on often arbitrary procedural rules, operate in near-total secrecy, and serve for life. Save the extremely unlikely possibility of impeachment for misconduct, they face little in the way of accountability for their actions.
While certainly vexing for officials, it’s normal in this day and age for protesters to peacefully question and challenge government officials outside the workplace, including outside their homes, in response to a specific policy. Senators such as Joe Manchin, D-W.Va., engage with these challenges from citizens because they understand this is part of what it means to be involved in crafting policies that reshape the lives of hundreds of millions of people in a democracy. If one does not wish to put up with this kind of pressure, one has the option to not accept a position of extreme power as a public official who makes life-and-death decisions about other people.
The skeptical counterpoint here would be that justices are not politicians. This position, held by institutions such as The Washington Post's editorial board, holds that the Supreme Court should be immune to conventional political pressure as a branch of government that’s engaged in an evidence-based, apolitical mission of ascertaining the true meaning of law. (We saw this idea surface when centrists and Republicans fixated on the leak as tainting the sacred secrecy of the Supreme Court.)
From a purely legal standpoint, there is a federal statute that abridges the right to assemble outside courts and judges’ homes, based on the principle that protests could obstruct justice. But it’s unclear if the statute really can be used decisively to suppress judiciary-oriented protests, and the fact that many protests have occurred outside the Supreme Court raises questions about whether it has been — or will be — enforced. So let’s set that aside for now, and allow me to advance the argument that it should be permissible in the case of Supreme Court justices.
The notion that the Supreme Court is involved in a process that is in some sense objective and purely evidence-based is nonsense. If that were true, then Roe v. Wade, a ruling made by the Supreme Court nearly a half-century ago, wouldn’t be on its deathbed; if the court had already divined how we should understand abortion rights, what is there to contest? The fact that the Supreme Court is poised to overturn its own opinion underscores that this is no objective process: It’s one underpinned by value judgments and ideological inclinations. This is why both parties are always desperate to appoint new justices. It’s also why both parties often disagree on who makes for a good justice.
This is all to say that the judicial branch, just like the executive and legislative branches, is involved in the business of politics. Court justices reckon with political questions in a more technical manner than lawmakers and presidents, and should indeed be guided by a sense of justice, not popularity. But that institutional imperative does not mean its judgment calls transcend ideology, and that its conclusions should be immune from citizen response. There is nothing inappropriate about citizens questioning or expressing dissatisfaction with those conclusions in the form of peaceful protest in response to its decisions.
Justice Clarence Thomas suggested last week that the outrage over the draft opinion could be seen as an attempt to bully the court toward a different outcome. “We are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like,” he said at a judicial conference Friday. But that argument, callousness aside, could cut the other way as well.
As mistrust in government continues to surge, legislative dysfunction renders policymaking glacial, and minoritarian institutions undermine democratic life, the Supreme Court is becoming a more salient and more controversial player in our politics. Perhaps more of our government officials should learn to live with a possible outcome they don’t like: an increasingly mobilized population furious about being disenfranchised and eager to question — and change — the very way our government works.