But their tactic was both wrong and wrongheaded. If your goal is to persuade justices such as Kavanaugh not to dismantle the right to abortion, this is precisely the wrong way to go about it. If anything, it will backfire.
Protests are an important tool in the arsenal of activists, demonstrating collective commitment and passion about a cause. This includes protests about Supreme Court rulings. We don’t want judges to be cowed by public opinion, but that doesn’t mean they should be oblivious to or insulated from the effects of their decisions.
“Another blatant attempt to intimidate the judiciary,” thundered Sen. Charles E. Grassley (R-Iowa). Somehow, the annual March for Life, on the January anniversary of Roe v. Wade, doesn’t seem to bother him.
Still, there is a place to protest the actions of public officials, and it’s not in front of their private residences — not if they are Democrats like House Speaker Nancy Pelosi (Calif.), and not if they are Republicans like Missouri Sen. Josh Hawley, both of whom have experienced protests outside their homes.
It’s intimidating, even terrifying, to have people turn up at your home, and officials’ spouses and children shouldn’t have to endure it. In Los Angeles, where the city council recently moved to block protests within 300 feet of an official’s home, council president Nury Martinez described protesters screaming obscenities into her daughter’s bedroom window. This kind of bullying goes too far.
It’s also, in the case of Kavanaugh and the court, apt to be counterproductive. It may be that Kavanaugh is a sure vote to do away with constitutional protection for abortion rights — that he’s just been biding his time, having conned Sen. Susan Collins (R-Maine), until the right moment.
And that moment may be at hand: In the term that begins in roughly two weeks, the court will hear a challenge to Mississippi’s prohibition on abortion after 15 weeks, a case in which the state and others have asked the justices to overrule Roe.
Certainly, Kavanaugh is no fan of that ruling. It would be foolish to hope that abortion rights will be as protected after the justices decide the Mississippi case as they are now.
Still, a ruling that finds a narrow way to uphold a prohibition against abortion after 15 weeks, the law at issue in Mississippi, is preferable to a broadly worded opinion that opens the door for six-week bans like the Texas law now in effect. It is possible to imagine Kavanaugh joining Chief Justice John G. Roberts Jr. in refraining from outright abandonment of constitutional protection for abortion rights.
So what is the best way to nudge him in that direction?
Here’s the thing to understand about Kavanaugh: He wants to be liked and admired. Unlike some of his conservative colleagues, he enjoyed being part of, and respected by, the legal establishment; teaching at Harvard Law School was important to him. In the aftermath of Christine Blasey Ford’s testimony, and Kavanaugh’s intemperate outburst, that kind of acceptance is no longer available to him.
But there are ways for him to carve out a reputation as a thoughtful justice, win plaudits from those whose acceptance he still craves and prove that the searing confirmation process did not leave him embittered.
Even some of those who want to narrow or eliminate the right to an abortion almost certainly fear what eliminating it entirely will do to their party’s future at the polls. It is not hard to imagine Kavanaugh, who has the most extensive experience in politics among the justices, wanting to avoid deciding the Mississippi case in a way that would likely hurt Republicans in the midterm elections a few months later.
The smartest strategy, therefore, is to encourage Kavanaugh when he demonstrates temperateness and restraint. The dumbest approach is to alienate him. There isn’t much prospect of good results from the Supreme Court as currently constituted, but Kavanaugh represents the last best hope for less bad outcomes.
On the court, he has demonstrated an inclination, not every time but often enough, to split the doctrinal difference and avoid reaching hard questions. And as Kavanaugh goes, so goes this court — he was in the majority in 97 percent of the court’s cases last term, more than any other justice.
So, while it might be therapeutic for Kavanaugh’s critics to issue fruitless demands for his resignation, it only increases the risk that it will drive him more irrevocably into the extreme conservative fold. It’s human nature to bristle at the side that reviles you.
Protests, appropriately conducted, can play a positive role when it comes to the court. Perhaps this is wishful thinking, but I have been wondering about whether the backlash to the Texas law, and the court’s decision not to block it, might induce the conservative justices to take a more moderate course in the Mississippi case — not to go as far as they might otherwise be inclined.
So protest away — just get off Kavanaugh’s lawn.