Protesting Supreme Court injustice has been a vital part of US history
United States Supreme Court Associate Justice Clarence Thomas has said, regarding those who protest the potential decision to overturn Roe v. Wade, that “We are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like.”
This is a remarkable statement.
By this same philosophy, we should chide those, who were unwilling to “live with” Dred
Scott v. Sanford. Perhaps if Justice Thomas had been on the Supreme Court in 1857, he would have scolded Frederick Douglass for delivering his famous “The Dred Scott Decision” speech before the American Abolition Society. But then, again, Justice Thomas would have been unable to be on the Supreme Court then because, according to Dred Scott, he would not have been a citizen or a person of the United States, and that as a Black man he did not have “any rights that a white man need respect.” But according to the Justice, he would just live with the outcome.
The relationship between the Supreme Court’s edicts and the acceptance of the people has always been an integral part of the American fabric and an anticipated part of how we govern and hopefully progress. Just as it is naive to think that the Supreme Court renders its decision in a vacuum, unmindful of the social and political impact, it is equally incorrect to believe that the body politic is ever content to “wait until the Court comes to its senses.”
Immediate accountability for the volcanic impact of society changing Supreme Court doctrine is not only logically to be anticipated but profoundly to be wished for.
A society that does not immediately respond to the potential devastation from legal doctrine espoused by nine individuals with lifetime appointments is a socially dead society and certainly one that is inconsistent with a republic where “supreme power is held by the people.”
The Plessy v. Ferguson doctrine of “separate but equal” may have ultimately been overturned, but Brown v. Board of Education was as much, and probably more, a result of the protest, outrage and determination of those who very often lost their lives, than it was an intellectual reconsideration. Without the effort and sacrifice of those who stood up in protest, Plessy and Dred Scott would have been “good law” for another century. Who should live with that outcome?
So too, we confront the rights of women to determine the health and safety of their own bodies. This is not simply a philosophical/moral debate to be pondered and determined by reliance on 12th-century doctrine (as is supposedly the justification in the Alito draft of the proposed majority opinion). Thousands of women, many of them economically poor and disenfranchised, have and will lose their lives in back-alley butcher shops. Yes, it is also an immediate crisis for the life of the unborn. Neither of these challenges can afford to wait for society to “live with the outcome” of decisions without protest.
At stake for society is not just the specific right of women to obtain an abortion. The rationale of Roe v. Wade, presumably to be overturned, rests itself in the implicit right to privacy that flows from the Due Process Clause of the Fifth and 14th amendments. Diminishing or eliminating the rights of Roe v. Wade may be tantamount to, or at least a precursor to, limiting or eliminating our constitutional protection of right to privacy in area outside of abortion.
In a world of constant invasion by government into the privacy of our lives in areas ranging from electronic communication to the confidentiality of our visits to doctors or clergy, destructive legal doctrine is not an outcome that any of us should “live with” although disagreeing, until the Supreme Court changes its mind. Speaking out (nonviolently) both forcefully and immediately is what fuels transformative change.
Decision-making in tough cases with substantial social consequences, is what the Supreme Court does. Protesting the injustice of those decisions is what the people do.