LOWRY/The shameful high court protests
There was something ridiculous about the half-a-dozen protestors in “Handmaid’s Tale” costumes showing up at Supreme Court Justice Amy Coney Barrett's house, with one of them explaining to a reporter that Barrett, as an adoptive mother, doesn’t know what it’s like to carry a child to term. Never mind that the Justice has given birth five times.
Still, even this farcical spectacle was part of an unprecedented intimidation campaign against justices of the Supreme Court, who have never been directly in the crosshairs in this way before.
The protests at the homes of conservative justices who may vote to overturn or limit Roe was a shameful step further down for our political culture, which wasn’t particularly elevated to begin with. It is a deeply illiberal act that adds an element of menace to the deliberations of a body that is supposed to be above the fray, let alone subject to physical threats.
If we continue down this path, it will tear at our status as a nation of laws and further derange our public life with consequences no one can predict.
These weren’t run-of-the-mill protests. No one doubts that demonstrations have an important role in showing popular support for, or passion around, a given cause. It’s different to go to the homes of the justices, which sends the unmistakable, inherently threatening message: We know where you live.
Intimidation is always wrong in a democratic republic and nation of laws. It substitutes the threat of force for the democratic will as refined by our representative institutions and seeks to short-circuit reasoned decision-making.
It is especially egregious when aimed at the members of a judicial body. In fact, it’s a violation of federal law to demonstrate outside a court or home “with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.” In other words, precisely what has occurred since the leak of Justice Samuel Alito’s draft opinion overturning Roe.
The White House has signaled no discomfort with the protests so long as they are “peaceful,” even though they are clearly meant to distort the Court's deliberations and are a black-and-white violation of a federal statute. The Biden team has lost whatever grounds it ever had to lecture anyone about the importance of norms or institutions ever again.
To its credit, the Senate unanimously voted to extend security to the families of Supreme Court justices. But the threat here is larger than to the justices. These kinds of acts invite retaliation. Do we really want to get into an escalating contest of who can best intimidate the other side’s judges and officeholders?
If the court pulls up short of overturning Roe now, it will call into question its legitimacy, since many people will assume justices changed their minds only in response to the post-leak uproar and pressure.
Apologists for direct action sometimes point out that mobbing was part of the American Revolution. This, though, was a genuinely pre-revolutionary, and then revolutionary, situation. It is doubtful, no matter how fanatical pro-choicers are, that they are on the verge of calling out the militia.
Even when Americans were on the cusp of dissolving the political bands connecting them with Britain, we honor the memory of patriots who refused to give in to the logic of mobs — John Adams representing the British soldiers at the Boston Massacre, Alexander Hamilton protecting the Loyalist president of King’s College from an angry crowd.
All that said, at least the demonstrators are consistent. Roe and its follow-on decision, Casey, were never constitutional decisions, but acts of will imposed from on high. Now, with those decisions at risk, the demonstrators are taking that same willfulness into the streets to try to pervert the working of the Supreme Court yet again and even more flagrantly.
Friends of the Republic mustn’t let it happen.
Rich Lowery is editor of National Review, a leading conservative magazine founded by William F. Buckley.