1. It’s not necessarily OK—in a world where we might prefer to live, where established governing procedures have manifest legitimacy—for protestors to chant their objections to a judicial ruling, draft or otherwise, outside a judge’s place of residence. But OK-vs.-not-OK isn’t what we do here at BAD HISTORY, and if anything’s “deeply rooted in this Nation’s history and tradition,” to quote the leaked draft Supreme Court decision now under protest, it’s showing up where it’s not OK to show up and turning the lives of public officials, whose legitimacy is not, in fact, manifest, into a big headache.
2. I’m thinking here about, among other responses, Bill Kristol’s tweet: “Please don’t protest at people’s homes. Please don’t intrude on people’s houses of worship. Organize politically, be civil civilly.” Plus some implication that the protests outside judges’ homes are threatening to become equivalent to the Jan. 6 events at the Capitol. A sense that this kind of thing crosses a well-established line where free speech morphs into the end of civilization.
Also a supposed report calling the anger in this video more palpable than that at other judges’ houses, which makes me wonder what’s even going at other judges’ houses:
3. Law gives us one way of thinking about what’s not OK. Protesting outside judges’ homes seems to be illegal. If it is, and if the situation either gets violent or just turns into a headache too big to put up with, then the protesters will probably be arrested. If something really bad happens, like an act of violence against or intimidation of a judge or a family member—I hope I don’t have to assure you that I think that would be very bad—many will say the bad thing emerged inevitably from the kind of nonviolent protest we’ve seen so far, but that won’t be true. If it were, then virtually any protest at officials’ homes or places of business, which happen often, would lead to such a result, and overwhelmingly they don’t.
4. So none of the bad things has actually happened—I know, “not yet”—yet some of those who don’t like what is happening at these protests are acting like the worst has already happened, or will happen inevitably, almost as if they want it to, because then they’ll be right about what’s so wrong with what’s actually happening.
5. Federal judges sometimes get assigned bodyguards to deter assassination attempts, usually when they’re trying major druglord types. I assure you that despite my lack of regard for “OMG, protesters, please don’t go to their homes, it breaks with all known standards of civil discourse,” which seems not only way, way out of touch with our most deeply rooted traditions but also a bit, how shall I say, snowflakey, I know it would obviously be a terrible thing if judicial rulings started routinely triggering the kind of threat or act that requires bodyguard deterrence. But here again the slippery slope looks almost like wishful thinking in the face of what’s actually going on, which isn’t by any means that.
6. In the deeply rooted traditions so beloved of the five justices who want to overturn Roe v. Wade, it can be OK to protest illegally. During the Occupy movement, I heard a protester insist, with outrage, “Civil disobedience is not illegal!” Um, no. Pretty much by definition, it’s illegal, but being illegal doesn’t make it wrong. Since a key principle of civil disobedience is nonviolence, protesters engaging in it are supposed to accept the illegality of their actions and accept arrest without resistance. It’s hard to do that. And a lot of people who say they’re protesting nonviolently seem to really be hoping to apply physical intimidation, even escalate it to violence, and nonviolence isn’t just not hitting people. But you can be trained in it.
7. I don’t know where the line supposedly is between assertive protest and the physical intimidation that is in fact one form of violence. I doubt if anybody does; I think I more or less know it when I see it, and I doubt I’m always right. So I doubt the protesters know either. Maybe some of them really think they can just flat-out scare some of the judges into changing a vote, thus saving Roe v. Wade! Just scare them! Like a ruthless bad guy in a prestige streaming TV show!
Maybe? I don’t know. I’m not all that hard to scare, yet I suspect that if what I saw in that video were going on outside my house, panic terror isn’t the thing it would strike in my heart. More seriously, I do not think that can possibly be a realistic intention.
8. If that stuff is truly scaring Kavanaugh and not just annoying him, he needs to get out more.
9. John Adams, recalling 1793 in Philadelphia "... when ten thousand People, and perhaps many more, were parading the Streets of Philadelphia . . . when Markett Street was as full as Men could Stand by one another, and even before my Door." I have a feeling that was actually scary. Adams hated that kind of stuff, and he kvetched about it —but it was also common in his world, and he’d seen (and deployed!) a lot of it.
10. Adams has gotten us circuitously back to what we really do here at BAD HISTORY, so I’ll end these notes by pointing out that in the most deeply rooted American history and tradition —I mean the action that got us here in the first place, and that’s just for starters—this whole violence/intimidation/nonviolence concern becomes completely meaningless. Nothing is more deeply rooted in “this Nation” than angry crowds—I mean quite palpably angry!—not just showing up at officials’ homes but tearing and burning them down. Roughing up the officials. Tar-and-feathering them. Force-marching them around town on display. Requiring them to publicly quit their jobs. It’s just straight-up funny that fans of Alito’s language about history and tradition are horrified by these current protests, which nobody in the 18C would have even noticed as such, because things have gotten so much better since then, and a lot of what’s most deeply rooted in our history is very, very bad.