As Noah Rothman notes, Americans are right to be worried that we live in an age of escalating political violence and declining political will to name, shame, and punish it when it is perpetrated by one’s own allies. There’s another worrisome trend: the tendency to use warnings of violence as an implicit constraint on legal and political decision-making. That’s not how our system is supposed to operate — indeed, it’s a significant part of why we have a federal capital city.
Consider two examples from December.
Example One: A Tucker Carlson interview with Megyn Kelly. Kelly: if Trump is sent to jail in D.C. pending appeal before the election, “the country’s gonna burn.” Carlson’s response: “Speaking of violence, that’s what you’re gonna get. . . . If you leave people no alternative, then what do you think is gonna happen? . . . You’re gonna get violence if you keep this sh** up. That’s just the truth.”
Example Two: A New York Times column by left-leaning legal academics Steven Mazie and Stephen Vladeck: “When the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or that at least avoid inciting violence in the streets.” They call for the Court to pull its punches and restore “the sense, across the Supreme Court, that the country would be better off with a court that took appropriate measure of how its rulings would be received beyond the details of the legal analysis the justices provided.” Naturally, examples of decisions they see as failing that test are Bush v. Gore (which left the 2000 election where it would have been if the legal system had never gotten involved) and Dobbs (in which the Court handed an issue back to the democratic process).
Kelly and Carlson insist that they are trying to avoid violence, and Mazie and Vladeck likewise claim that they are cautioning the Court not to push things that will end up “inciting violence in the streets.” But in both cases, the message is framed as “do what we want, or we can’t stop our own side from breaking things.” Now, I agree that the threat of violence is elevated when we erode trust in the legitimacy and continuity of our rules and institutions. But the minute we start arguing for the interpreting of legal rules with one eye on the mob, we’ve already lost.