Getting Mobbed 

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Dr. Malcolm Cross

The leaking of the draft of a possible Supreme Court opinion threatens the rule of law by encouraging mob rule and all that that entails—the use of hate, fear, and violence, rather than fact, reason, law, and order for decision making.  The leaker must therefore be detected and punished to the severest extent the law allows.

Both the identity and the motives of the person who leaked the draft of a possible Supreme Court opinion are unknown as of this writing.  The opinion itself, written by Associate Justice Samuel Alito, would, if adopted by the Supreme Court, overturn Roe v. Wade and restore to the states the right to fashion their own abortion policies.  Did the leaker want to prevent supporters of the draft opinion from changing their minds?  Or did the leaker want to gin up public opposition to the draft and hope public opinion would encourage one or more supporters of the draft to decide to retain Roe v. Wade after all?  Actually, it doesn’t really matter.  What’s far more important is that the leaker has raised a serious threat to the rule of law and must be punished not only for damage done but to deter the creation of future threats as well.

And exactly what threats did the leaker create?  Others have written that the leak will erode the confidentiality of Supreme Court deliberation and undermine the faith the justices must have in their processes and each other if they’re to work well together and maintain at least some degree of public trust.  But the encouragement of mob rule, if successful, may do even greater damage to the rule of law.

Since its creation, the Supreme Court has been one of the battlefields on which Presidents and Congresses have ought to advance their respective policy agendas.  Presidents nominate justices whom they hope will advance presidential goals, and senators vote to confirm or reject nominees, depending on presidents’ goals and their own as well.  Republican efforts to staff the Supreme Court with opponents of abortion and Democratic efforts to keep abortion opponents off and put supporters of abortion rights on the Supreme Court are the most obvious examples of the ongoing war between Republicans and Democrats to control the Supreme Court.

But at least the Supreme Court’s procedures are orderly, nonviolent, and at least partly open to the public.  Each side to a dispute may publicly present both written and oral arguments in support of its respective case.  The hearings wherein the arguments are presented are open to the public.  And while the internal deliberations among the justices are private, their decisions and the opinions offered in support of those decisions are nonetheless public as well.  Whatever one thinks of Roe v. Wade, or Dred Scott, or Brown v. Board of Education, the opinions of the Justices are easily accessible.

And the rulings of the Supreme Court are not necessarily final.  Any ruling can, in theory at least, be overturned by a constitutional amendment or by a subsequent Supreme Court decision.  

But the actions of the leaker, whatever the motive, are encouraging mob rule.  The addresses of Chief Justice Roberts, Justice Alito, and the four other justices who apparently support the Alito draft have been published.  Crowds are beginning to demonstrate—so far peacefully—outside he homes of Roberts and Justice Kavanaugh.  Alito and his family have been moved to an undisclosed location.  The attempts at intimidation are obvious.

So, too, are the dangers of escalation.  So far, the protests have not risen to the level of those on January 6, 2021, which featured violence, vandalism, and deaths in an attempt to interfere with what should have been the orderly counting of the electoral votes to certify the election of President Biden. Yet the emotions unleashed by the controversy could easily escalate into violence as well.  After all, the mob that attacked the capitol had initially been part of a larger but more peaceful demonstration.

Just as the perpetrators of the violence on 1/6 must be prosecuted through due process of law to deter future violence, so too must the leaker be punished as well, not only for the damage to Supreme Court processes but especially for the encouragement of mob rule.  The Supreme Court at least tries to use fact, reason, order, and law to make its decisions.  And however much we may dislike its decisions—and whatever the Supreme Court decides on Roe V. Wade will elicit intense dislike from many quarters—we must remember that all too often mobs produce decisions based on hate, fear, and violence.  Do we want to trust our fate to them?


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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