On the weekend of May 7, protesters angered by the leaked draft of a pending Supreme Court opinion overturning Roe v. Wade assembled in front of Supreme Court justices’ houses. A crowd of a few hundred people first gathered at the house of Justice Brett Kavanaugh before moving over to Chief Justice John Roberts, who lives in the same Chevy Chase, Maryland, neighborhood. The crowd then headed back to Kavanaugh’s house while police guarded properties.
While the protest was peaceful, it caused a firestorm online, where some liberals joined conservatives in condemning the protesters for entering these neighborhoods. On Monday, White House press secretary Jen Psaki released a statement apparently decrying the very idea of protesting the justices. Protesting “should never include violence, threats, or vandalism,” Psaki stated on behalf of President Biden. “Judges perform an incredibly important function in our society, and they must be able to do their jobs without concern for their personal safety.”
.@POTUS strongly believes in the Constitutional right to protest. But that should never include violence, threats, or vandalism. Judges perform an incredibly important function in our society, and they must be able to do their jobs without concern for their personal safety.
— Jen Psaki (@PressSec) May 9, 2022
But there were no reports of vandalism or violence at the homes of the justices; a subsequent protest at the home of Justice Samuel Alito on Monday night was likewise peaceful. (A Wisconsin anti-abortion building was spray-painted and damaged by a small fire the day of the protests in an unrelated incident.) Still, the reaction of alarm from politicians and media was predictable: The specter of uncivil disobedience has long hung over the history of American protest. I spoke with Candice Delmas, associate professor of philosophy and political science at Northeastern University and author of A Duty to Resist: When Disobedience Should Be Uncivil, about why these protests are stirring up so much debate and what that means for democracy. Our interview has been edited for clarity.
If we look at historical precedent, where would protesting outside a Supreme Court justice’s house fall on the scale between civil and uncivil disobedience?
What I take to be the public understanding of civil disobedience includes nonviolence. Nonviolence in this society excludes property damage, but there’s a lot of discussion about that. You might say that some vandalism in some circumstances is justified, even though it’s not nonviolent. People like [Mahatma] Gandhi and [Martin Luther] King don’t really see property as an essential value, so they also make room for property destruction, even though they never resort to it themselves. The common understanding of peaceful protests places the protesters outside Kavanaugh’s house in the peaceful protest category.
What makes some people ticked is that they’re not in the public sphere per se, they’re in residential neighborhoods. But Supreme Court justices are public figures, and it’s not that uncommon for mayors and other public officials to have protesters outside their homes. Boston’s new mayor, Michelle Wu — people were protesting the vaccine mandate outside her home throughout the Covid-19 pandemic. Because they were coming so early and making so much noise, she passed a new ordinance that says that it’s only between 9 am and 9 pm that you can protest outside people’s homes.
So it’s just not that surprising. The right to peaceably assemble outside justices’ homes is constitutionally protected.
Our ideas of what protest looks like and how protest functions were formed during much different eras of democracy. Were there ever clean dividing lines between civil disobedience and uncivil disobedience?
They never were clear, so what we see today is what we’ve always seen. The accusation of a lack of civility imposed on peaceful protesters is a constant theme for both the public reaction and authorities’ condemnation of protests. When you had clearly peaceful marches and sit-ins going on as part of the civil rights movement in the ’50s, you had broad disapproval of their message. The protesters were completely nonviolent. They were nicely dressed and they were respectful and peaceable, but they were accused of being unstable rabble-rousers, impatient, and disturbing of order and civil peace.
When Martin Luther King Jr. writes the letter from Birmingham Jail, he addresses his fellow clergymen who are also saying, “You’re doing it wrong. You need patience, you need stability.” It’s always been like that. Now we have this template of the civil rights movement that works to police contemporary dissent that is especially applied to progressive social movements that seek racial justice.
The template that’s imposed is itself problematic. It plays a role in sustaining the status quo and deterring dissent, but even when protesters do meet it, they’re told they didn’t. What you see here was a few hundred people marching from Justice Kavanaugh’s house to Justice Roberts’, and they’re entirely nonviolent. Yet the main reaction, especially from the White House, is “don’t do that.” As if their mere presence marching in those residential neighborhoods was a threat of intimidation.
There’s something ironic about the notion of entering into these neighborhoods being seen as invasive when what people are protesting is the invasion of bodily autonomy, of untouchable private property taking precedence over people’s bodies.
For that reason, it’s a well-chosen kind of protest. It’s also highlighting the power and the ramifications of judges’ decisions here.
I think there’s a way in which women and marginalized people have essentially always been conscripted into protests (and debates about “uncivil” protests) by virtue of being at the center of so many conversations about how their bodies should be used.
There’s really solid social scientific data that shows that when a good number of participants in a peaceful protest are racialized, that protest is more likely to be described as a riot or an uncivil kind of protest than if it is mostly white people. Similarly, if there’s a really rowdy crowd that damages property, if it’s mostly white people, it’s less likely to be described as a riot than if it involves persons of color. That effect is real and pronounced.
You’ll also see the combined effect of racism and sexism on the protest of Black women, because they’re gonna be seen as more shrill and angry independently of the tenor and the substance of their protest. So they might have the same kind of slogans as the Women’s March on Washington, yet they will be derided as angry and distracting from the cause.
So marginalized bodies are an extra hurdle to protest — to be seen as what they are, [to be seen as] peaceable and civil, and to be heard. So [the concept of] incivility is a weapon used by those in power to maintain the status quo and to tell protesters not to do it that way and to stay home.
There’s also an idea that protest is just about self-expression. When it gets too serious, when it gets too focused on creating actual change, instead of just lifting your voice or whatever, then it gets to be dangerous.
If you try peaceful protest for long enough and nothing changes, then you have a justification for stepping up the style and trying something less civil. You see that across a lot of social movements.
I mean, the Black Panther Party started after the civil rights movement [as an alternative to] this decades-long political experimentation with nonviolent protest. So even after the passage of civil rights legislation, [there was a need to] find Black power and establish Black power. The Black Lives Matter movement, in the first wave in 2015, was calling itself “not your grandfather’s civil rights movement.” It was very much the heir of the Panthers and Black nationalism. There’s ACLED research that showed that 95 percent of the [Black Lives Matter] protests were peaceful and involved zero property damage, but they were unapologetic about urban unrest and the need for the white majority to hear and defer to Black rage.
You can see that in the climate movement as well, right? And the Hong Kong pro-democracy protest as well. Like, enough is enough. When things don’t change, why keep trying the civil and peaceful route?
These abortion protests right now are — I think we all feel that in the air, that there will be peaceful protest, but there’s also a desire to send a message that things could go badly. That the resistance might unleash some uncivil forces if nothing is done. That’s not what the hundred protesters gathered were necessarily demonstrating, but there is a sense of that in the air. And I think maybe some of the critiques were reacting to that too — that sense that much worse protests could take place.
It’s really hard to view protest the same way following the January 6 insurrection. So much of our understanding of civil disobedience is based on the idea of doing your patriotic duty to resist unjust laws or an unjust and illegitimate government. So it’s very easy to see that, in that tradition, if you’re somebody who believes an election has been stolen, you would feel totally justified in storming the Capitol, in storming the institutions that you think have been delegitimized.
Since that moment, the whole idea of protest and what constitutes justified violence has become much more fraught. Would it be safe to say that that’s making otherwise peaceful protests feel more tinged with unease?
That sounds right, between January 6, the leaked draft, and the general extreme polarization of US politics. You know, there’s been renewed talk of the possibility of civil war in the United States. And so that’s the really serious kind of horizon here.
I take the reactionary movements, like Stop the Steal and the anti-lockdown protests, to be operating with a very different frame of reference than progressives on the left. They are operating within a classic Lockean liberal frame of the right to resistance — the right to revolt and overthrow tyrannical governments, which traces back to the founding of the country. But that isn’t a framework that tells you how to affect social change. It’s a framework that just says that militant revolutionary violence is justified against an oppressor.
The progressive activists are trying to affect social change. To be clear, the fact we tell them they need to follow the standard template of what a protest should look like, which was handed down by the civil rights movement and the peaceful, nonviolent era, is also a way of domesticating their real goal — the revolutionary goal. But they are seen as seeking reform within broadly democratic institutions. It’s a different frame of reference and justification than what the white supremacists and others are doing.
So January 6 put at the forefront of everybody’s mind questions around the justification of violence. You’re invited to think that if the institutions that you thought were legitimate were being completely undermined, illegitimatized, and on the brink of destruction, taken over by a pedophile set, of course you would also storm the Capitol. But we’re letting them off the hook if we just say that, oh, they just happened to be motivated by mistaken beliefs. It’s really a double standard.
Is there a way in which, moving forward, we can reconcile those two different ideological frameworks in a way that allows for the legitimization of protest again?
I think that, in a way, liberal neutrality offers you that. The idea that societies are pluralists, and the goal is never to align all our understanding on the same issues under these same big doctrines, but to coexist peacefully and in democratic concord with each other — so long as we have a public sphere where we all enter to deliberate about issues regarding the common good.
The wager is that we can actually seek a common good, even when we otherwise have really divergent understandings of what makes life good or even what is good. The problem is, it’s not clear that we can if we have completely adverse understandings of reality. But the constitutional right to political participation is consistent with protecting the right to protest, and really protecting it extensively.
I don’t think [that protection] requires saying who is right and who is wrong. I think anti-vaxxers have mistaken views, but I think they have the right to protest. They have the right to protest nonviolently at certain times of the day without weapons, and in a civil way that you can define through the law. So there’s various ways of protecting people’s right to protest that can respect disagreements.
But isn’t that all predicated on the assumption that laws are legitimate and that if you find the right form of protest they can change? What does it mean to protest within a system you don’t trust — does that change the nature of the protest?
I argue that uncivil disobedience, better than civil disobedience, can really contest the status quo and unsettle deeply the general system that’s being questioned. Various forms of civil disobedience can jolt the public into realization of the urgent need for action and can also mobilize the people, build coalitions, and so on.
But I’m at a loss as to whether there’s any way to reconcile people on the right and on the left today over protests. I do not have that answer. I think that democracy is in danger and that the people on the right think democracy is in danger for very different reasons. At least they think the legal order is in danger.
It feels like we’re in a “things fall apart, the center cannot hold” stage.
I’m quite pessimistic. But as for where we go from here, we’ll keep focusing on the style of the protest rather than on their ends. Like, we’re talking about the residential neighborhoods and the ethics of protesting in those, rather than on what’s happening to abortion access. And then we’ll hear all the liberals and the authorities saying you gotta protest peacefully and that peaceful protest works better. And then we’ll still see some uncivil incidents. Those will be mostly done unapologetically by activists who will say we really need to do something, that this is a matter of urgency. It’s just the same litany as previous protests.