When Politico published a draft Supreme Court majority opinion last week that would overturn Roe v. Wade, protesters quickly gathered outside the court. Few court decisions in the past 50 years have evoked as much passion; it was entirely predictable, then, that the potential repeal of Roe would spark a quick, vehement backlash.
Some supporters of overturning Roe on the political right quickly drew an odd comparison: The protests at the Supreme Court were not simply protests but, instead, the dawn of a new, real insurrection — something more serious than what occurred at the U.S. Capitol on Jan. 6, 2021. Comparisons were made to the protests in the summer of 2020 that occasionally devolved into vandalism and violence.
But there was no violence. Just a vocal, angry protest. A peaceable assembly, if you will. The sort of thing that the court itself has necessarily upheld for centuries.
At the same time, talking heads in conservative media and Republican elected officials were expressing outrage of their own. Not at the draft opinion, of course, with which they agreed. Instead, at the leak of the opinion itself. This, like the nascent protest at the Supreme Court, was at times pitched as an insurrection. But it was more broadly cast simply as an effort to damage the court and derail the decision itself — a view dependent on assumptions about the politics and intentions of the leaker that have not been validated by evidence.
The through line was obvious, though. The real damage, the real threat from overturning Roe was not to women who sought access to abortion. It was, instead, to those who advocated for overturning Roe. When protesters turned their attention to protesting at the homes of members of the court or Republican legislators, that sense of victimization shifted in a new direction.
You can see the pivot by tracking mentions on cable news broadcasts. Since Sunday, May 1, the day before the draft opinion was leaked, CNN and MSNBC have mentioned “Roe” more than Fox News. But Fox News has mentioned the “leaker” or “protests” far more often. (On the charts below, notice that the vertical axes are not the same in each row.)
This redirection of victimhood was neatly encapsulated in an interview that Sen. Ted Cruz (R-Tex.) gave Monday night to Sean Hannity on Fox News. Cruz had quickly responded to the leak itself with warnings about the grave threat it posed to the court, an amplification of “the leaker was the problem” line of argument. But with Fox News’s pivot to the purported threat posed to justices by protests at their homes — including the elevation of an evidence-free claim about Justice Samuel Alito, who wrote the draft opinion, being forced to evacuate his home — Cruz pivoted, as well.
“These images,” Cruz said, referring to images of people protesting peacefully, “are the latest manifestation of just how extreme, just how radical the Democratic Party is getting. … Today’s Democrat Party believes in violence. They believe in mob rule. They believe in intimidation, just like Marxists and communists.” Again: This was in response to footage of people standing in the street, chanting.
Then Cruz had his cake even as he ate it. He cited White House press secretary Jen Psaki — “as Jen Psaki said, listen, these thugs have no business at the private homes of any government officials, the Supreme Court justices or anyone else” — before, a split second later, claiming that the White House was ignoring the left’s horrible actions: “It is disgusting to see Joe Biden and the entirety of the Democratic Party turn a blind eye.”
“What we’re seeing, Sean,” he continued, “is a replay of 2020, a replay of the Black Lives Matter and the antifa riots. And in this instance, once again, they’re putting politics above everything else, including people’s lives. And these radicals are inviting violence directed at our judiciary and directed at the rule of law.” See what got blurred there? The protests are just like riots because they “invite” violence; the difference between criminal actions and legal actions is rhetorically swept away.
Cruz did point to one act of violence that has emerged in past week: The headquarters of an antiabortion group in Wisconsin was set on fire. “If abortions aren’t safe then you aren’t either” was written on a wall outside, pointing at a pro-Roe motivation. No one has been arrested in the attack. Even in doing that, though, Cruz blurred the same line.
“These thugs who dox the justices should be embarrassed and ashamed,” Cruz said, referring to the protesters outside the justices’ homes. “And by the way, these are the same thugs that are firebombing pro-life outlets.” Of course, they are not, anymore than Cruz was the same as a Jan. 6 rioter because he, like them, sought to reject the electoral college vote that day affirming Joe Biden’s victory.
Speaking of! Cruz at one point labeled the rioters on Jan. 6 as “terrorists” — a position he quickly moderated once the right and Fox News challenged him on it. When Hannity compared the Capitol riot to the 2020 protests, suggesting that the left wanted solely to litigate the former and not the latter, Cruz readily agreed.
“On Jan. 6 of 2021, you had tens of thousands of people peacefully protesting,” Cruz said. “And yet the corporate media and Democrats slander them with the made-up term ‘insurrectionist.’ And yet in this instance, they are not willing to call off their goons even now.”
On Jan. 6, tens of thousands of people were peacefully protesting, a fraction of those who protested peacefully in the summer of 2020. The media describes a subset of those Jan. 6 protesters, those who stormed the Capitol, as “insurrectionists” because they tried to foment an insurrection against the government. (These were Cruz’s “terrorists,” of course.) In 2020, a smaller percentage of those who participated in protests engaged in violence that was not focused on overthrowing the government and that was broadly condemned, including by Democratic leaders. As Cruz himself had noted a minute earlier, the White House had, in fact, tried to “call off the goons,” but that detail wasn’t useful for the senator’s argument.
“If these guys want to protest, great,” Cruz said to Hannity. “Go to the public square, go to the Mall, go in front of the Supreme Court. … They’re not looking for peaceful speech. They’re looking for threats. They’re looking for intimidations. They’re looking for targeting the kids of the justices.”
Setting aside the point that the protests are happening in public spaces (and that his allies at first fretted about the purported danger of protesting at the court), Cruz gets to the point of tension: Is it appropriate to peacefully, angrily protest with the aim of making the target of the protest uncomfortable? As many have noted since the right and Fox News began fretting over the protests, this happens to elected officials on both sides of the aisle and at various levels of government with some regularity. It’s understandable (if not sympathy-inspiring) why the powerful would oppose normalizing this, and the acceptability of the practice depends heavily on the nature of the protest.
But look what we’re talking about here. Not Roe and the effects of the appeal. Instead, we’re debating what the political left is doing. The discussion is about what’s happening to the justices, not what might happen to women seeking abortion in a post-Roe world. And that’s the point, both intentionally and inadvertently. Cruz and Hannity quickly considered the now-common line of argument that rescinding Roe wouldn’t really have much of an effect anyway, a curious claim given that Cruz said he “prayed” it would be overturned. By casting the end of Roe as a nonissue — which, to Cruz and Hannity personally, it probably is — they can heighten the nefariousness of the response to the court’s likely decision.
It can get silly. Sen. Susan Collins (R-Maine) called the police upon discovering graffiti outside her house — graffiti written on the sidewalk in chalk calling for her to support specific legislation. That is about as pure a peaceful assembly for redress of grievances as you will find, but the senator cast it as a threat.
“Seven unelected lawyers in black robes said to the American people: You pesky voters, your views don’t matter. We know better than you do,” Cruz told Hannity — speaking not about overturning Roe but about the original decision, something he cast as standing in opposition to the public will. It wasn’t then; overturning it isn’t now.
But “five unelected lawyers in black robes saying to the American people ‘your views don’t matter’” is not the line of rhetoric Cruz and the right want to amplify at the moment. Instead, they want to focus on those American people who are insisting their views be heard — and casting those Americans as a dangerous threat to themselves personally.