Orlando Sentinel

Protesting Supreme Court injustice has been a vital part of US history

- By LeRoy Pernell LeRoy Pernell is a professor of law at Florida A&M.

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.

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