Nothing a Mob (or the Supreme Court) Does is Clean: Brett Kavanaugh's Dinner and the Social Contract

I do not charge for subscriptions any longer, and my writing is free to all, but if you are interested in supporting me and my work, I would very much welcome the one-time or occasional cup of coffee. You can buy me one here. Thank you!

Last Wednesday, protestors forced Supreme Court Justice Brett Kavanaugh to cut short his dinner at Morton’s, a Washington D.C. steakhouse. The third-newest justice and his security detail left out the back of the restaurant, apparently before Kavanaugh had been able to enjoy dessert.

That same day, a group of activists barged into a senior living facility searching for Carolyn Bryant Donham, the white woman implicated in the 1955 lynching of Emmet Till. The senior living facility was put on lockdown, the police were called, the residents were shaken, but the protestors did not find Donham.

The activists who ruined Kavanaugh’s dinner at Morton’s did not commit a crime. Since the protesors at the senior home left when the police they demanded they do so, no charges were filed. The debate isn’t over whether what they did was criminal — it’s whether these tactics represent a long-overdue confrontation with injustice, or whether this strategy of direct action is foolish, unkind, and indefensible.

Elizabeth Spiers @espiers

People complaining about confronting Kavanaugh at Morton’s demonstrate why respectability politics is a problem. They genuinely believe (even if they’re not aware of it) that a loss of manners is an erosion of the social contract.

No reasonable person disputes that it is uncivil to interrupt people’s dinners, or to unnerve elder residents of a retirement home by wandering the hallways, yelling for a fellow resident to be brought out. The question is whether the incivility is justified, perhaps even necessary, because of the far greater harm inflicted by Justice Kavanaugh’s rulings and Carolyn Bryant Donham’s long-ago accusations.

The most famous defender of social contract theory was the 17th English philosopher John Locke, who argued that civil society exists to protect our natural rights, and that each of us should surrender some of our autonomy to the government in order to more safely enjoy access to those rights. In practical terms, that means that we trust the state (what Locke called the commonwealth) to provide justice, and as long as the state continues to honor its obligation to do justice and protect liberty, we ought to allow the state to do its job. We should not be vigilantes — but nor are we obligated to submit to tyranny. Locke argued that if the state violated its side of the contract by failing to protect the natural rights of the people, the people had a right to rebel and overthrow the government.

To state the obvious, whether you think the United States government is effectively honoring its end of the social contract has at least something to do with your particular circumstances.

If you’re a Black American, the agents of the state will often treat you differently than they do others. We have countless examples of Black people unjustly deprived of their natural rights (including the right to life) by the police, who are the most visible guardians of the social contract. The state abrogated the social contract not just in allowing Emmet Till to be murdered, but by its woefully inadequate attempt to provide justice in the aftermath.

Millions of American women regard the overturning of Roe v Wade as a similar abrogation of the social contract. The social contract treats the body as one’s own property; when the Supreme Court rules that states have the right to deprive women of fully autonomy over their own bodies, the Court has nullified the quid pro quo between the government and its be-wombed citizens.

My point isn’t to argue abortion or racism. What interests me is that an increasing number of Americans are convinced that in one way or another, the social contract has been broken — if they concede it ever existed at all. Following Locke, that means a revolution against the government is not only justified, but necessary.

Ruining someone’s dinner is not quite a revolution. Spoiling Kavanaugh’s dessert isn’t likely to change his mind; we all know that the more we are harassed for our beliefs, the more we are likely to dig in our heels. It isn’t likely to lead to his impeachment and removal, or his resignation. A protest is not an assassination. Rather, the shouts outside of Morton’s say, “We still honor the institutions enough not to engage in open insurrection, but not enough to be polite about our anguish and frustration.” It’s a middle point between open violence and acquiescence, and like most things in the middle, it’s awkward.

I do not think that the protestors who invaded the senior home looking for Carolyn Bryant Donham wanted to lynch an 88 year-old woman, though it is plausible they might have harmed her physically had they found her. They want the state to charge her with a crime at long last, which means they still believe the state has the capacity to do the right thing. They aren’t quite ready to tear up the entire social contract — but they are ready to stop asking nicely. Barging into a residential living facility filled with elderly folks, many with dementia, is not “nice” — it too lives in that strange middle ground between civility and violent revolution.

If you’ve read my writing, you know manners and civility are the my chosen hill on which to die. I’ve written before that having lost so much in this life, I’ve found that manners and warmth are the only things that my own foolishness (and cancel culture) cannot take. I’ve taken my manners to jails and hospitals and many other unsavory places, and they sustain me. I stipulate that that says a lot about me as a white man from a particular background with a particular set of mental challenges. I cannot and will not universalize from my own experience, particularly as someone who has always benefited from the basic terms of the social contract.

What I want to know is this: where does this direct action end? What kind of an equal and opposite reaction does it invite? The insurrectionists on January 6 believed that election fraud had nullified the social contract, and that justified a violent hijacking of the constitutionally ordered proceedings. For years, those who have engaged in direct action against abortion providers have claimed that violence is righteous, because the state has refused to do its duty to include the unborn in the social contract. I’ve known some militant animal rights folks in my day, and more than one of them has told me that any legitimate government must protect the rights of all sentient creatures — and that factory farming represents a clear violation of the social contract. The slaughter of animals for human consumption is, they say, justification for revolution.

Do we still trust our institutions to work? Can they be reformed, or must they be torn down? If we want change, and we feel our most precious rights are under attack, how far are we willing to go in order to defend our values - and our children’s futures? We’re in this strange no-man’s-land between outright civil war and a common sense of purpose, and though it may have been so at other times in the past, the tension has never been so painful and anxiety-producing.

I know for me the only possible answer is more conversation, more civility, more story-telling, more earnest pleadings for humility, for patience, and for seeing the essential decency that lies in each and every one of us. I also know that that increasingly sounds like cloying pablum. I have read the room and the room is angry, and that anger frightens me.

In his most famous poem, the late Australian poet Les Murray notes that “nothing a mob does is clean.” It’s a marvelous work — and it’s as good an explanation I have for why I don’t go to demonstrations, or march. At the same time, I remember that a lot that the state does isn’t clean either. Simply tending one’s own garden with a warm but distant smile is probably not going to be enough.

Demo

No. Not from me. Never.
Not a step in your march.
not a vowel in your unison,
bray that shifts to bay.

Banners sailing a street river,
power in advance of a vote,
go choke on these quatrain tablets.
I grant you no claim ever,

not if you pushed the Christ Child
as President of Rock Candy Mountain
or yowled for the found Elixir
would your caste expectations snare me.

Superhuman with accusation,
you would conscript me to a world
of people spat on, people hiding
ahead of oncoming poetry.

Whatever class is your screen
I’m from several lower,
To your rigged fashions, I’m pariah.
Nothing a mob does is clean,

not at first, not when slowed to a media,
not when police. The first demos I saw,
before placards, were against me,
alone, for two years, with chants,

every day, with half-conciliatory
needling in between, and aloof
moral cowardice holding skirts away.
I learned your world order then.