Protest Can – And Should – Influence the Supreme Court

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tags: abortion, Supreme Court, Protest

ERIC STONER is a co-founder and editor of Waging Nonviolence and an adjunct professor at St. Joseph’s College in Brooklyn, New York.

Protesters took to the streets outside of the Supreme Court of the United States on Monday night, following a report from Politico that the court intends to overturn Roe v. Wade, a development that would eradicate the federal right to abortion. People across the country are calling for mobilizations to continue, citing the devastation and death that would certainly follow such a ruling. 

SCOTUS confirmed on Tuesday that the leaked text is accurate but says that it is only a draft. The final decision, which may still be a month or more out, can be revised, and justices may even change their vote in the process, though that does not seem likely.

Whether Roe is overturned, or whether the new decision is enforced, depends on how people respond now. Polls have consistently shown that a strong majority of Americans support abortion rights. But opinion has little influence on the system if people are not mobilized and putting serious pressure on those in power. 

“The majority support access to abortion but can’t see themselves as a majority without demonstrations,” professor and activist Keeanga-Yamahtta Taylor proclaimed on Twitter. ​“The autocrats in SCOTUS can’t feel their illegitimacy without protests.”

The alarming, if predictable, attack on reproductive rights comes from a profoundly anti-democratic institution that has only drifted further from public opinion in recent decades.

Conservatives currently have a 6 – 3 supermajority on the court, even though Republicans have only won the popular vote nationally once in the last 30 years. And that victory was George W. Bush’s second term, which only happened because the Supreme Court intervened on his behalf in the 2000 election. Ketanji Brown Jackson’s ascension to the Supreme Court marks a long-overdue historic victory for diversity on the nation’s highest judicial body. However, it will not affect the fundamental balance of power on the court.

This disconnect between the will of the people and the makeup of the court has led to a growing crisis of legitimacy, with the court’s approval rating recently dropping to an all-time low, according to Gallup. 

Yet, while the institution itself is undemocratic, it is not immune to public opinion and mass protest. It is easy to forget that ordinary people, working together through social movements, have agency to impact the court. Time and again, history has shown that the Supreme Court does, in fact, respond to the court of public opinion.

This was confirmed by none other than Justice Sandra Day O’Connor, who wrote that ​“real change, when it comes, stems principally from attitudinal shifts in the population at large. Rare indeed is the legal victory — in court or legislature — that is not a careful by-product of an emerging social consensus.” 

What is left out of her astute observation is how that consensus is formed. Through sustained and often disruptive protest, social movements play an instrumental role in shaping public opinion and what is seen as politically possible. 

Read entire article at In These Times

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