by Sherry F. Colb
On September 9, Professors Cornel West and Robert George visited Cornell Law School to engage in civil conversation about topics on which they might disagree. My colleague and friend, Professor Sheri Johnson, expertly moderated the discussion. As a general matter, I like civility. When one can achieve positive ends without being disagreeable, civility is highly desirable. There is, however, a downside to civility that emerged for me as I observed the conversation.
During the discussion, Professor Johnson at one point asked the two men what they thought of the Texas abortion statute that has lately been in the news, SB8. The law prohibits all abortions (save those necessary to prevent a mother's death) starting at six weeks gestation, and it deputizes any private person in the world to bring a lawsuit against a person who induces or performs an abortion or who "aids and abets" the performance of an abortion. I wrote at greater length about this law here. What I will note now is that the statute plainly violates the Constitution under existing doctrine and that it intentionally delegates enforcement to private parties to make it difficult or impossible to declare it unconstitutional prior to its enforcement. The goal is, of course, to deter the universe of individuals who might help a woman exercise her constitutional right to end an unwanted pregnancy, by threatening them with lawsuits by random bounty hunters who have nothing to do with the woman or her wish to have an abortion. What could better capture the sentiment that a pregnant woman is everybody's business?
Professor Johnson gave Professor George (who believes abortion is murder) a gift by asking him what he thought of SB8. He could have said that he favors civility and that there is nothing less civil than knowingly passing a law that violates the Constitution and designing that law to evade judicial review. We must not silence those who disagree with our positions. Indeed, he had earlier said how especially important it is for people who have strongly held views to allow people to air opposing positions. The stronger one's view, the more one needs to let those with different ideas speak and be heard. Going to court to argue over the constitutionality of a law is the quintessential scenario in which advocates voice opposing views so that no one (especially not the courts) becomes lazy in their thinking and unable to consider ideas that are hostile to their own.
Did Professor George, champion of civility, give an answer along these lines? No, he did not. He instead spouted the bogus talking point that other fans of SB8 have been repeating: SB8 is just like environmental and civil rights legislation that provides for individuals to serve as private attorneys general. Lol. He might as well have said that SB8 is just like "Leaves of Grass" by Walt Whitman. They do both contain English words. Here is the difference. Environmental and civil rights legislation has not openly flouted constitutional doctrine in anticipation of a court throwing out the doctrine. And also, environmental and civil rights legislation has not identified the entire population and invited any one of them to bring a lawsuit against people "aiding and abetting" a constitutionally protected right. In legislation that is not rogue anti-abortion flexing, legislatures pass laws that plausibly adhere to constitutional limits AND, and this is the important part, lend themselves to judicial review prior to enforcement. Most legislators do not have the chutzpah to write up an obviously unconstitutional law and then gerrymander its enforcement so as to stop courts from saying that it is an obviously unconstitutional law. It reminds me a little of the practice in some prisons of inmates choosing to rape other inmates in areas of the penitentiary outside the view of any camera. Inmates know that rape is illegal, but they really prefer not to have a guard show up in the middle and interrupt the act. SB8 is a lot more like that practice (especially when rape victims find no one to help them terminate their pregnancies) than it is like the Clean Air and Clean Water Acts.
In all humility, I cannot say whether Professor George mischaracterized SB8 because his pro-forced-pregnancy bias clouded his judgment or whether he was deliberately distorting the truth. Either way, others have explained why the analogy to private attorneys general is fatuous, so it would have been refreshing to hear a new perspective. He could, for example, have said that outside the abortion context, a similar law might prohibit people from criticizing religion and then eliminate courts' jursdiction to review the statute before anyone has voiced an "illegal" critique. Because of the civility norm that Professor Johnson was observing, she did not school Professor George on why his analogy between SB8 and any existing law is silly (at best), though oft-repeated.
Civility is quite frequently (though admittedly not exclusively) the demand that powerful people make of those less powerful than themselves. This is where civility is oppressive. For a little example, I will risk (additional) offense and say that Professor George, throughout the evening, lowered his mask so that it covered only his mouth (and sometimes not even) but not his nose. When people out in the world play this game, other, more considerate, people have a special name for the less considerate ones. It is, of course, more comfortable to talk without a piece of material over your nose and mouth. But the primary point of the mask is to ensure the safety of other people, not the comfort of the wearer. Professor George, demonstrating his sensitivity to his own needs, uncovered at least his nose most times that he spoke. It turns out, though, that the infectious droplets (photo here) that come out of people's noses do not go on hiatus just because the people happen to be holding forth on civility. So how does this demonstrate the problem with civility? I'll give credit where credit is due and paraphrase Michael Dorf (who is generously tolerating this distinctly uncivil post): even though lots of people in the audience and probably the host as well would have liked for Professor George to stop spreading George Germs whenever he felt like talking, they said nothing because they did not wish to be rude or disrespectful. In other words, norms of civility silenced them, as such norms so often do.
Cornell rules require people in the building to wear masks to protect others from COVID-19 Delta variant. But then Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman's Health v. Hellerstedt require governments (including legislatures) to permit women to terminate their pregnancies up until viability. Maybe the Justices were just too civil to say anything about the Texas legislature's (and its allies') allowing the "rule of law" mask to slip quietly off their faces.