Over the past 10 days, it seems every major news outlet in the country has weighed in on whether or not protesting outside of the homes of Supreme Court justices is legal. Yet very few of these analyses have discussed the efficacy of such protests.
The partisan arguments over legality can be dismissed relatively quickly with a standard lawyer’s response of “it depends.”While the law is clear that protesting outside of the home of a judge for the purpose of intimidation is illegal, current interpretation of the First Amendment right to free speech and free assembly would seem to cut in the direction of allowing peaceful, non-intimidating protests, especially if those protests “parade” by a justice’s home rather than linger out front. However, federal law specifically designed to protect the judiciary from undue influence cuts in the other direction. Given that the court has never decided a case in which it was their own homes being targeted by protesters, your guess is as good as ours as to how they might rule.
Fortunately for all of us, the legality of protesting outside the home of a Supreme Court justice (or any judge, for that matter), is irrelevant to all except those doing the protesting and those potentially doing the arresting or prosecuting.
Why is it irrelevant? Because save only a few, very limited exceptions, protesting outside of a person’s home is morally questionable and almost certainly does not serve the interests of justice. Rather, it distracts from the pursuit of justice and turns the narrative and emotional energy of the populace over to the enemies of truth. As such, we (the collective we) should simply stop doing it.
Let’s be clear: Should a majority of the court rule to overturn the right to abortion in the United States, those justices voting with the majority will have:
(1) misled the public in a manner that is so obvious it could not possibly be explained by a mistake or misunderstanding;
(2) potentially committed perjury while under oath during the Senate confirmation process;
(3) violated the core tenets of the Constitution they swore to uphold by eliminating well-established precedent for the purpose of imposing their personal religious beliefs on the public writ large;
(4) become the first court since the Civil War to limit, rather than expand, the rights of women; and
(5) opened a Pandora’s box of chaos and uncertainty around every other legal precedent that is not, as the draft opinion explains, “deeply rooted in our nation’s history” or “implicit in the concept of ordered liberty.”
In other words, history will remember those justices for their role in democratic backsliding and the decline of the institutions of government that at one time made the United States the most stable democracy in the world.
Given all of that, one can understand why people who believe their rights to bodily autonomy and free will are being limited might choose to protest at the homes of the people taking away those rights. It is similarly understandable why people who believe their family, relationships and communities are next on the chopping block, such as LGBTQ people, might also choose to protest at a judge’s home.
However, this justification breaks down upon even the most cursory of examinations. The foundation of pro-choice (as well as pro-marriage equality) policies is the right to privacy, which includes the fundamental rights to safety, security and privacy in our own bodies, families and personal lives.
Protesting outside a person’s home is a tactic specifically designed to disrupt this sense of safety, security and privacy — that is precisely why hate groups like the KKK engage in such behavior. Protesting outside a person’s home creates the fear of danger, insecurity and exposure, not only for the target of the protests but for neighbors as well.
How do we continue to claim the moral and ethical high ground if we engage in the same behaviors we condemn? How do we lay claim to the mantle of justice while engaging in unjust acts? More, in today’s world we all know this: it’s only a matter of time before one of these home protests turns violent or even deadly.
Beyond morals, ethics and principles of justice, there is also the basic reality of efficacy.
For the first week after the Supreme Court’s leaked draft opinion, there wasn’t a news outlet, social media group or subreddit that wasn’t discussing abortion rights and women’s rights to privacy, autonomy and security over their own bodies. And given the overwhelming majority (approximately 80%) of Americans who support a woman’s right to make a private choice with her own doctor, those conversations had the real opportunity to be a catalyst for change.
But just a few days later, even the most liberal and feminist of news outlets have been forced into discussing the legality of the protests, rather than discussing the illegality of a woman’s right to choose.
Instead of discussing the shadow of a new caste system in American society hanging over the horizon of the future, we are talking about decades- and even centuries-old court cases discussing whether sidewalks are public forums.
Instead of discussing the likely possibility that women seeking abortions will be forced underground into unsafe and unsanitary conditions — leading to an even greater loss of human life that the evangelical right claims to care so much about — we are instead discussing whether a women’s rights group should be allowed to continue posting to TikTok.
Protests outside of the justices’ homes may feel good. But they aren’t helping. They are centering those with the privilege to protest in the conversation, rather than centering those who need our help right now, right this second, in figuring out what they will do if abortion is outlawed two weeks from now.
Our country has spent its first 250 years of existence failing to live up to our high-minded ideals, and those of us who fight for justice for all people within our borders have spent decades calling out that failure and begging the country to do better. Now it’s our turn to step up and do better ourselves.