Friday, May 6, 2022

This time, let’s not talk about process

by Sara del Nido Budish

 

The US Supreme Court Building at Dusk

“Panorama of United States Supreme Court Building at Dusk” by Joe Ravi. Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0). No changes made. https://creativecommons.org/licenses/by-sa/3.0/

In the frenzied hours since Politico published a draft opinion by Justice Samuel Alito that would overrule Roe v. Wade, commentators and writers have used strong language to emphasize the historic importance of the leak:  “unprecedented,” “shocking,” “singular and egregious.” 

But this focus on the leak—how it happened, who did it, and what it means for the future of Supreme Court deliberations—is misplaced if it comes at the cost of distracting from the opinion itself. The important work to do right now has to do with substance, not process.   

To be sure, there is something about the focus on the leak that resonates deeply with a dispute resolution lens, which so consistently (and, I believe, correctly) conceives of the process by which a decision is reached as inextricably linked to the substantive outcome.  Wearing my negotiation hat, it is a quick and easy instinct to write a process-focused analysis of the leak, which might examine the benefits of secrecy in high-stakes negotiations, the potential tension between transparency and confidentiality in Supreme Court and other government proceedings, and what this leak indicates about the present or future of the Court’s process of deliberations. These are all worthy questions. But even in this moment when everything in the news cycle holds a sense of urgency, there is a way in which that focus on the leak itself comes up short at best, and at worst, actively and insidiously obscures the gravity of the potential legal, political, and social change on the horizon. 

The linkage between process and outcome means that no thorough analysis of a policy should ignore the ways in which that policy decision was reached: which voices were heard, which were left out or unwelcome, what decision rule was used. “Process” is a broad umbrella, and there are surely urgent process-related questions that provide necessary insight and context for the words in Justice Alito’s opinion and the weight that it seems to have carried in this particular composition of the Court.  But it is also increasingly well-documented in recent negotiation scholarship that process and its many forms—from norms for communication to the “neutrality” of the third party to the fairness or unfairness of the structure—is a powerful set of levers that themselves can draw attention and be wielded in a way that serves to dial down the vividness, and therefore power, of the underlying perspectives.1 There may be an analogue here to an undue focus on the leak: if we keep talking about who might have leaked the draft and why, we’ll spend less time talking about the draft itself.  Perhaps even hand-wringing about the latest breakdown of long-established norms in democratic government is, in some ways, easier than grappling with profoundly differing belief systems or engaging with the deep emotions that are often present (if intellectualized) in policy debates over reproductive rights.

For those of us in the dispute resolution field who are impassioned by these shifting winds, there is work to be done at this moment that directly wades into the profoundly difficult substantive issues that have been re-invigorated by the leak. Here are just a few ways in which our collective energy could be channeled:  

  • Helping people listen to each other. Questions around reproductive rights will continue to play out in legislatures across the country, as well as in schools, places of worship, community organizations, the media, and homes. These conversations are of course far from unique to this moment, and still, the leak has undoubtedly re-energized the debates around these topics, and arguably raised the stakes. The topic of abortion is historically not one on which people have found it easy to listen.2 But if the country is going to survive yet another blow to its frayed sense of shared direction and identity, and weather the cascading battles that will ripple out from this leak, it seems necessary for us each to be able to better understand why for some people, this moment represents a long-overdue alignment of policy with morality, and for others it represents a deeply and profoundly frightening step backwards. Having these conversations ourselves, and creating spaces in which others can have conversations that build understanding, is an important piece of the work.   
  • Identifying a set of external approaches that align with our internal calls to action. For some of us, creating safe and reflective spaces for people who have divergent views on abortion to find common ground and shared interests might feel like it helpfully expresses and provides an appropriate outlet for either our own deep ambivalence about the underlying issues, or our sense of pragmatism about the possible way forward. For others of us, that approach and stance may feel deeply misaligned with where our heads and hearts would lead us, because the balance of our internal voices—guided by our moral compass, lived experiences, core values, and so many other sources that influence our perspectives—falls more heavily in the direction of advocacy as we anticipate a final decision handed down by the Court. Whatever view one has, this moment is an opportunity for—and arguably requires—a thorough internal negotiation to disentangle our own various thoughts and feelings, and then an assessment of how to bring that internal orientation to bear when engaging with others.   
  • Bringing an interest-based lens to a rights-based framework. Regardless of one’s perspective, the legal structure and language that has in turn shaped the policy debates around abortion have focused on protecting rights, not satisfying interests. Indeed, the framing around rights can serve to raise the stakes of these disagreements and even sow skepticism about whether there really is any room for interest-based work. But even when directing energy towards impacting a system firmly rooted in a rights-based framework, skillful advocacy requires a strategic and thoughtful assessment of the other stakeholders and their interests. Engaging the tools and frameworks from negotiation and dispute resolution can be a powerful source of strength in building a movement and exerting pressure—social, political, or otherwise—in order to achieve a particular outcome.3

Is a breach of protocol at the nation’s highest court disturbing and important? It absolutely is. But is it more important than an enormous shift in the way the legal system understands fundamental rights—especially reproductive rights? It is not. And while I don’t expect that public discussion about the substance of the opinion will dwindle anytime soon, there is a real risk that some of the country’s attention could be diverted to a juicy investigation of the leak, rather than facing head-on the beliefs, experiences, passions, and, yes, differences that have led this issue to be so heartbreakingly divisive.  Who suffers in that process of diversion? Which voices, which accounts, which experiences are overshadowed and deprioritized? It seems to me that the answer to these questions aligns with those whose rights are ultimately at stake. 

1 See, e.g., Bernard Mayer and Jacqueline M. Font-Guzman, The Neutrality Trap:  Disrupting and Connecting for Social Change (2022); Sharon Press and Ellen E. Deason, Mediation:  Embedded Assumptions of Whiteness?, 22 Cardozo J. Conflict Res. 453 (2021).
2 See Jennifer W. Reynolds, Talking about Abortion (Listening Optional), 8 Tex. A&M L. Rev. 141 (2020).
3 See Brooke Davies & Daniel Oyolu, Power, Protest, and Political Change, Harv. Negot. & Mediation Clinical Program (2020), available at https://hnmcp.law.harvard.edu/power-protest-and-political-change/

 

Sara del Nido Budish
Sara del Nido Budish is Assistant Director and Clinical Instructor in the Harvard Negotiation and Mediation Clinical Program (HNMCP), and a Lecturer on Law at Harvard Law School.