Getting Real About SCOTUS

I am constantly getting emails, these last few weeks, trying in various ways to get me to take action to try to stop the confirmation of Brett Kavanaugh to the US Supreme Court. To grab more eyeballs, they often even cloak this objective in other language, like one subject header the other day that urged me to "Keep Donald Trump from Stopping Environmental Progress for Another Generation!"

This is the kind of thing that makes me wonder: are these people being disingenuous, or just ingenuous? The math isn't hard to do. Even if Democrats take back both houses of Congress this fall, they won't have the two-thirds majority in the Senate that they would need to remove Trump from office. And even if some unforeseen turn of events actually moved enough Republicans to vote that way, the impeachment of Mike Pence isn't on the horizon. So there is no prospect whatever that anyone progressives will like better than Kavanaugh will be nominated prior to 20 January 2021.

There are also reasons to suspect the scaremongering is an exaggeration. For instance, prominent civil rights attorney Justin Robinette was quoted in the July 13-19 Philadelphia Gay News as saying,
"Kavanaugh worked as Kennedy's clerk, and that may have a significant impact on how he handles cases he's appointed. I think he could put a burden on abortion rights but I don't believe that he will be responsible for reversing precedents such as Roe v. Wade." And Akhil Amar, described by The Stanford Review as a "liberal lion of the legal academy," has written, "I propose that the Democrats offer the following compromise: Each Senate Democrat will pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task)."

Then there's what Eleanor Smeal, founder of the Feminist Majority Foundation, said at a rally in 1990: "I know that David Souter is the fifth vote to overturn Roe v. Wade." (I heard it with my own ears.) He wasn't, of course.

This being clearly the case, why all the emails? Some of those lower down in the liberal apparatus may actually have deluded notions about the possibilities of impeachment, but surely those at the top don't. The motivation must be something else.

One clue is that so often these petitions and other calls to action, including ones from politicians, are accompanied by appeals for funds. My suspicion is that a big part of what motivates this attempt to whip up a sense of urgency around this nomination is simply that it helps get people in the mood to donate money. At the same time, it allows the Democratic base to feel politically engaged in a righteous and urgent effort, and that Democratic politicians are showing leadership. The function of this campaign, in other words, is basically sociological and is about maintaining in-group cohesion and enthusiasm.

That being said, you may ask, "But is there anything wrong with this?" I would answer yes, there is, because resources are finite, and while this sort of effort may be great for raising enthusiasm and funds for Democratic politicians, it diverts attention from the kind of efforts that could actually make a positive difference.

The perennial focus on the Supreme Court, especially in connection with the abortion issue, reflects a major long-term strategic error on the part of progressives. Contrary to what many say, SCOTUS is not the "last line of defense" for civil rights and liberties. The hearts and minds of the American people are.

Although, in practice, many Justices have certainly shown their willingness to ignore the actual text of the Constitution in favor of their own ideological preferences -- both liberal and conservative -- this comes with an ultimate cost. It has inevitably led to the politicization of the appointment and confirmation process, with many voters being motivated to vote for federal candidates who pledge to reverse result-oriented decisions that they don't like. And when this happens, the resulting decisions may actually veer further to the right than those that non-result-oriented justices would have made.

In the short term, of course, decisions like those typical of the Warren court looked like victories to progressives. Doubtless many individuals have benefited from them. But something negative happened at the same time, from which many averted their eyes: a backlash wherein the Right was able to wrap itself in populism and pose as the defenders of democracy against judicial tyranny. I think this is actually one of the biggest reasons such an intense ideological polarization has developed in the United States in recent decades specifically around "culture war" issues, especially abortion. And it's one of the major reasons so much of the population is "siloized" into groups who get different news and have different conceptions of the national reality. (Several years ago I heard a conservative co-worker say about liberals, "It's like they're living in a whole different world," and of course that perception goes both ways.)

The end result of this process is that we not only have a President who feels impelled to promise his base that the next SCOTUS member will vote to overturn Roe (although past experience shows that such things are never really predictable) -- we also have a large chunk of the electorate who think this would be a good thing, and whom the Left has done next to nothing to persuade otherwise, because we were misled into thinking we can rely on the courts to protect liberal values, and that changing the minds of our fellow Americans was unimportant or impossible.

Well, the fact of the matter is that it has always been important, possible, and necessary, and if we'd been acting accordingly these past few decades, we probably wouldn't have someone like Donald Trump in the White House. And, now that the overturn of Roe and other progressive decisions may be imminent, it's urgent to start taking this task seriously.

How can this be done? It requires getting out of the rut in which many activists are all too comfortable, of just doing more of whatever it is that we've been doing and assuming that that will suffice.

For many years it felt like I was talking to a brick wall when I tried to interest fellow activists in taking an evidence-based approach to what they were doing -- their usual response was one of total incomprehension. It was only in 2010 that a book finally appeared to take up this task: Nick Cooney's Change of Heart: What Psychology Can Teach Us About Spreading Social Change. (There's a hilarious passage near the beginning where he offers his version of what a letter to shareholders from Pepsico's board of directors might look like if written with the same light-on-data approach typical of many nonprofits.) In addition, I would strongly recommend the foundational work in this field, Robert Cialdini's Influence.

For now, I'll focus on one idea that seems particular apt given the role "siloization" has played in getting us to this impasse: we need to put a human face on the issues. Right now, for most Red State people, the face on the abortion issue is five unelected Supreme Court justices. What it must become instead is the millions of women who are alive today and fulfilling their potentials because they were able to terminate their pregnancies.

Just consider the difference "coming out" has made for the BGLT movement. As long as most people (thought they) didn't know someone who was bisexual, gay, or transgender, it was easy for them to picture only stereotypes with which didn't feel empathy. As more and more people came to know friends, acquaintances, and family members weren't straight and cisgender, they increasingly cared about how oppressive policies and practices affect their lives. They started communicating their concerns to lawmakers, corporate leaders, and others with power, amplifying the messages of BGLT people (especially since some, being closeted, didn't feel safe communicating such concerns themselves), and policies started to change.

The same thing can happen for the abortion issue. Reproductive rights activists can start making a priority of encouraging women who've had abortions to "come out of the closet" by sharing their stories and explaining how important it is that they had this option.

This may necessarily depend more heavily on organized public events than it did for the BGLT movement, because fewer opportunities are afforded on a daily basis for mentioning an operation that's in the past. Nonetheless, women may find ways of being creative here once they appreciate the  value to society of talking about it.

If marriage is an important life event, so is divorce, and increasingly we're seeing people celebrate it. Similarly, if bringing a pregnancy to term is an event whose anniversary we observe, the termination of a pregnancy can be as well. The tone of such an observance would no doubt vary depending on the individual woman's moral, philosophical, or religious outlook. Some might make it celebratory, while others choose a more somber observance treating the procedure as a necessary but unhappy choice. Indeed, even women who regret the choice that they made -- but not the fact that it was their choice -- could hold observances and invite their friends to participate. This, too, would help humanize the issue and replace stereotypes with real people.

A few years ago I overheard someone describing how a woman she knew always set a place at her table for her child that she'd aborted. The person on whom I was eavesdropping called this "sick," but I strongly disagree. How someone deals with an often painful decision like this depends on that individual's needs. Acknowledging the regret one may feel about something one had to do, in whatever form that may take, is in fact much healthier than trying to pretend to oneself that it wasn't a big deal. And, in this case, it regularly generates occasions for coming out to others as someone who chose abortion.

Another, somewhat less dramatic example: someone might choose to wear multiple bracelets, one for each of her children -- including the one she aborted.

I recognize that some of these versions of coming out could attract protesters and, as a clinic escort at Planned Parenthood, I know that they can sometimes be unpleasant. I couldn't blame any woman for thinking very carefully before doing something that could attract that sort of attention. Nonetheless I think it could really help the issue for some women to take that risk, and I personally pledge to support them in that choice in whatever way I can.

There's one more aspect that needs to be addressed, which again has a parallel in the BGLT struggle. As anti-BGLT politics grew in importance, many of its practitioners turned out to be people who were privately part of the gay community. And, not without controversy, some activists decided that such politicians' hypocrisy negated their claim to privacy. I agree with that view, since after all the only reason someone's sexual orientation, attested by their interactions with large numbers of people (including in public places such as clubs), has been considered a "private" matter is the stigma attached to it. A general rule against outing people without their consent is justified by the consideration that doing so makes life harder for people whose lives are already harder because of prejudice and discrimination. But if the person protected by this rule is actually helping perpetuate, or even worsen, the prejudice and discrimination suffered by others, that negates the whole rationale for considering the rule to apply to that person.

This isn't just about punishing such people or deterring them from their activism. It's actually much more important than that -- because it's an interesting fact that almost every anti-BGLT politician who's been outed in this way, rapidly switched to being pro-BGLT-rights. It appears in retrospect that their bigoted stance was simply a screen to deflect any suspicion about their orientation -- a hypocritical adaptation to social pressure. Once this strategy was rendered impossible by forced outing, they had no reason to stick to their anti-BGLT position, and promptly abandoned it.

Similarly, many of those involved in abortion-prohibitionist activism or politics have had abortions themselves, or have helped loved ones obtain one. This is normally considered a private matter, but if someone is publicly campaigning against choice when they've personally exercised that same choice, it's reasonable to argue that their hypocrisy is something the public has a right to know about.

There will probably be fewer opportunities to engage in such outings, since typically only a few people may know that someone had an abortion. Those who were involved in performing it, of course, are bound by federal law to keep it confidential. And others in the know will usually be people close to the hypocrite -- meaning that they are likely both to share her anti-choice politics and, even if they don't, to be unwilling to embarrass her. Nonetheless every effort should be made to encourage such outing. If publicity is given to historical examples, it may induce some people to come forward with fresh ones.