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Why Protest

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A lot of us live in blue states with representatives who usually do the right thing. So why protest in Boston, New York, Los Angeles, San Francisco, etc? This is a good primer on why it is important.

Consider, however, two other audiences for interest groups’ putting people on the street: Judges and bureaucrats. The politicians who have successfully cowed unelected implementers of national policy are those leaders who not only won elections but won them bigly. Thomas Jefferson’s Democratic-Republican Congress was able to accomplish an audacious political feat—repeal of the Circuit Judges Act—but only after thrashing the Federalists in 1800. He won with 60% of the popular vote. The 40th Congress faced down the Chase Court by stripping it of jurisdiction to review pro-Southern habeas petitions – but only after Anti-Johnson Republicans overwhelmed Democrats in the 1866 elections. FDR tried to pack the Supreme Court only after his big win in 1936. In all three historical episodes, the Supreme Court cowered and fell into line by upholding the Circuit Judges Act (Stuart v. Laird), the Reconstruction Acts (Georgia v. Stanton), and the New Deal (Jones & Laughlin Steel). In all three cases, it was not only their electoral victory that counted. The presidents were each riding high on the back of strong public opinion when they made their power grabs. Judges and other institutional actors had less reason to resist as the public largely supported the president or remained silent.

By throwing millions of demonstrators on the street, organizers of mass protests might be stiffening the spines of those unelected officials who may otherwise fear the pressure and vengeance of elected incumbents. Of course, civil service laws and Article III tenure help as well, but such parchment barriers can bend in the face of a persistently hostile Congress and President. Large demonstrations might send a message to judges and bureaucrats that a critical mass of voters have their back, because politicians will not have a strong stomach for a protracted showdown with the third and fourth branches.

The recent legal victories in Massachusetts and New York, where judges Allison D. Burroughs, Judith G. Dein, and Ann Donnelly have, for now, put a stop to parts of Trump’s refugee and immigration bans, are the very type of decisions that public demonstrations help support.

Indeed.

It’s also very important that we get the institutions where we have some influence to resist unconstitutional and discriminatory acts from the government. That’s why I was happy to be quoted in the press release from my union placing pressure on the Rhode Island Board of Education and Council on Postsecondary Education to do these very things. It at least gave a statement, even if is vague and general. Unlike any other press release I’ve pretty much ever been involved with, this has received some decent local attention, which is good. This is the sort of pressure we can use locally. It all helps.

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