Why You Might Have More Power than a Supreme Court Justice

An empirical sociologist shows that change happens at the periphery, not the core.

Sometimes, being too connected can be a detriment for social change.

The last week has been an intense one for animal advocates. First, we won an extraordinary victory in the Smithfield trial — in which I and Paul Picklesimer were charged with felony burglary for documenting cruelty and removing two sick piglets from Circle Four, one of the largest factory farms in the nation. Then, just a few days later, the Supreme Court heard arguments on Prop 12, the California ballot initiative that prohibits the sale of pork from the very crates we documented at Circle Four. Finally, two activists in Canada — part of the Excelsior 4 — were each sentenced to 30 days in jail for performing a nonviolent sit-in at a pig factory farm in Abbotsford BC, Canada. What tied all of this news together, most obviously, is a focus on pigs, and in particular the pig crates that have been the subject of condemnation for many years.

But as I have been thinking about these outcomes, and what they can teach us about social justice and social change, another strand that ties these cases together keeps coming to mind:

Change happens at the periphery, not the core.

This simple principle is one of the central ideas of Damon Centola’s important book, Change: How to Make Big Things Happen. And what he means is this: when are you are trying to convince the world to do hard things, it’s better to start with people who are not high profile; judges, legislators, and celebrities are often the last people to endorse significant change. The reason is that these highly connected people are subject to what Centola calls “countervailing influence” — i.e., the many people who are dependent on them, but who disagree with the change proposed, pull the social brakes on allowing it to happen. Highly connected people therefore pay a high cost in adopting change precisely because they are highly connected; they have lots of friends and connections who will “punish” them, in reputation or even in real professional consequences, for adopting a “radical” change.

In contrast, people who are not as high profile — e.g., the private citizens in a jury — are protected from this countervailing influence and therefore more able to make genuinely innovative choices. They do not face the same mockery, backlash, or professional consequences that a judge or justice might face, for making a decision that is right, but unusual or unexpected in the mainstream. This allows them to follow their conscience, and not social expectations.

What does this mean for recent events?

I don’t know how the Supreme Court will rule on Prop 12. Betting odds were in favor of it being struck down, before oral arguments this week. The Supreme Court accepts a tiny portion of appellate cases, and it seems unlikely it would have taken the Prop 12 case, if it did not plan to do something different than the lower courts, which upheld the law. What I do know is that it will be much harder — socially, professionally, psychologically — for a Supreme Court Justice to make a decision for animal rights, even one as limited as approving Prop 12, than it would be for an ordinary person serving on the jury. The Justices will have to think about their reputations, their legacy, and the pushback from their judicial peers, in a way that a random member of the public will not. That may ultimately be why the Supreme Court strikes down even the modest requirements of Prop 12; none of the Justices will be willing to go out on a limb for animal rights, given the scrutiny their decision will face within their (mostly conservative) social network. The very fact that these Justices are so central to our system of law — indeed, the very core of it — may be the reason that Prop 12 fails.

The Smithfield trial, in many ways, was the opposite of this. The decision in that case was made by anonymous members of the public, rather than high profile judges of the Supreme Court. While the decision to hold an anonymous jury was contested by the defense — and constitutionally fraught, given this country’s commitment to the public administration of justice — perhaps it had some benefit in allowing the jurors to make a decision of conscience, without the weight of public scrutiny. The fact that the jurors were ordinary people, and not political leaders or celebrities, also allowed the jury to make a truly individual and moral choice. The pressure of external factors and influence — e.g., the economic damage caused by the expected closure of Circle Four — would not affect them nearly as much as it might effect a judge (who faces re-election this November) or other political leader. The fact that these jurors are not central to our legal system — they are in the “periphery” of it, in fact — may be part of the reason they were willing to make a decision that was unusual, but morally right.

The Excelsior 4 trial, in turn, was a combination of the periphery and the core. While the initial judgment was made by a jury — after the defense rested with no defense evidence presented!!— the sentence was handed down by a judge. It’s hard to say what we can read from that situation. But I imagine, to the extent that future activist cases will go well, we will need to continue to rely on ordinary people, and not legislators or judges to drive change. I don’t know why the Excelsior 4 defendants did not present evidence to the jury. And I am not here to second guess that legal judgment. But to the extent it rested on the idea that we cannot trust ordinary people, it was probably a mistake. Ordinary people, precisely because they are not central to the administration of justice or politics, may be our greatest hope for change.

—

I promise that I’ll write more — and in higher quality — about the events of the last 2 weeks soon. But I am still reeling from the decision and a little overwhelmed by the number of things to do — media interviews, managing post-trial juror interviews, and attending a conference in Denver, then one in DC, all unexpectedly. I feel like I’m busier post trial than I was in the thick of it! But I hope to get to a more regular writing schedule next week. In the meantime, here are some quick updates:

• There’s been a huge amount of coverage of the trial. But here are the three things that I think are probably most important. Marina Bolotnikova’s piece in The Intercept. Andrew Jacobs’ piece in The New York Times. And an interview by Amy Goodman on Democracy Now.

• I am in Denver for one more day, speaking today at noon Mountain Time (during the lunch break) at an Animal Law Summit. Then I’ll be in DC tomorrow for a few days for another activist gathering. That activist gathering is private, but I might try to host a casual meetup, to hang out with supporters in the DC area, on Monday or Sunday night. Let me know if you’re in the DC area and interested in hanging out! (Leave a comment below or respond to this email.)

• I am really missing my dog and cat, and the entire Bay Area community, and should be back by next Friday. Our usual Friday Night Hangouts will start again on Friday, Oct 21. Have not decided on a topic, but you can count on it being something related to the Smithfield trial.

Thanks for reading, everyone!