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Do Public Protests Matter in a Democracy? The “outside strategy” as a signal of support to judges and bureaucrats

Opponents of President Donald trump mobilized record crowds to protest his anticipated policies – and the President and congressional Republicans largely ignored them.  One might ask, therefore, why marchers bothered.  In authoritarian regimes, “the Street” is a substitute for elections.  In a functioning electoral democracy, however, one might argue that the only march that counts is the march to the polling booth.  Put more generally, what is the political value of mobilizing large numbers of protestors to parade around a city, apart from making the marchers feel good about themselves?

One answer, as explained by Ken Kollman’s outstanding book, is that marches send a signal not only about public opinion but also capacity to mobilize voters.  “If we can put so many people on the streets,” the organizers of a protest imply, “imagine how many people we can mobilize for mid-term elections!” Mass mobilization in central cities like New York, Washington, D.C., or Los Angeles, however, seems like a weak signal of electoral clout to legislators elected from districts in, say, Idaho or West Virginia. Moreover, President Trump’s “motivated reasoning” seems to insulate him from most signals of his own unpopularity:  If he has not gotten the message from the actual electoral results putting him behind Clinton in popular votes, then it is hard to see how a few hundred thousand “pussy hats” bobbing outside the White House will change his mind.

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.

To those people who carry out the winners’ orders, therefore, it might matter not only that they won but also by how much they won and whether the public remains vocal or silent.

 

Image: Women’s March, Washington, DC – Melissa Bender

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About the Author

is the William T. Comfort, III Professor of Law at New York University School of Law. You can follow him on Twitter (@RickHills2).