The Briefing
June 24, 2015
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Wednesday, June 24, 2015. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
1) Supreme Court’s leftward trend under Roberts shaped by kinds of questions Court faces
The Supreme Court is as we all know, one of three constitutionally coequal branches of government. And yet that phrase coequal points to the fact that there is a genuine division of powers between the executive branch represented by the President and his administration, by Congress, the legislative branch represented by the house and the Senate and the judicial branch represented at the very top by the Supreme Court of the United States. It is constitutionally proper to speak of these three coequal branches of government. But it’s also true that at particular moments they are really not coequal, because on one issue or another, at one historical moment or another, one of these branches actually holds the key to what will happen for the nation’s future.
On a day by day basis that is most often the presidency, especially given the vast administrative expansion of the presidency since the Second World War. At other times it’s Congress, it can actually be one of the two houses of Congress which is why sometimes the nations waiting to see how the House or the Senate individually will vote on an important issue. But at other times we are simply waiting to see how nine singular individuals seated on the United States Supreme Court will rule. As we find ourselves as the court comes to the end of its term that historically in by the last business day of June. Looming before us are huge decisions yet to be announced including most importantly the decision on same-sex marriage, another very important decision on the Obamacare legislation and there are other issues still hanging as well. But it’s particularly at this time of the year, also at times like January when the court tends to hand down some important decisions that the nation begins to focus attention on the judicial branch in a way it otherwise simply does not.
Now there are a couple of things that Christians need to note here. For one thing, the division of powers is intentionally designed to limit the effects of sin and the concentration of power that sin would lead to and that would cause an occasion for even greater sin. In other words, it is opposition to the idea of an autocracy, especially in the executive branch that leads to the separation of powers. It’s also the understanding that a direct democracy which would amount to a mob rule is ameliorated or limited by the very existence of the United States Senate. We also know that when it comes to the judicial branch, one of the ways our constitutional framers sought to make very clear the independence of the judiciary was by creating for the federal courts at large and especially with reference now to the Supreme Court life terms without any specific term of years.
Ever since the 1950s and a constitutional amendment then, the United States president has been limited to two full terms. There is no limitation upon the number of terms a member of the House or the Senate may serve but they do have to face the voters with regularity, in the house every two years, in the Senate every six years. But those who are appointed to the United States Supreme Court and the other federal courts and those who are eventually confirmed by the United States Senate, they sit on that court until they either die or retire and thus there can be extraordinarily long tenures on the nation’s highest court. And yet at the same time, most Americans even though they can name the president and feel they know something about him, even though they may be able to name their Congressman and their senators, we can certainly hope so, many of them are in no position whatsoever to answer even the most basic questions about one of the three coequal branches of the United States government, in this case the Supreme Court of the United States.
In more recent decades this is a particular issue because the court has been growing in influence and importance. There are several reasons for this – one of them is the kinds of questions that are being asked, if they are inherently constitutional questions as so many of them now are, they will inevitably arrive before the nation’s highest court. But there’s another reason as well. And that is the fact that where Congress and the executive branch often do not or cannot settle issues, it eventually arrives at the Supreme Court as the last Court of Appeal where the issue will in one way or another be decided.
One of the things we need to note there is that that is not the way a democracy, a representative republic should work. But nonetheless, that’s what we find ourselves as the 2014-15 term of the Supreme Court of the United States comes to a conclusion. As early as today but certainly by Tuesday of next week, we are likely to know how the court is going to rule on all the remaining cases and most assuredly the case having to do with the legalization of same-sex marriage across the United States. But the nature of the court, the influence of the court is underlined by an article that appeared yesterday in the New York Times. The article is by Alicia Parlapiano, Adam Liptak and Jeremy Bowers. The headline,
“The Roberts Court’s Surprising Move Leftward.”
The courts are generally referred to by the last name of the Chief Justice of the time. Thus, we talk about the Roberts court because of the tenure of Chief Justice John G. Roberts Jr., who took office in 2005. The headline here tells us that according to the analysis presented here this court has been moving left in particular in this term. The reporters write,
“The Supreme Court under Chief Justice John G. Roberts Jr. has been a conservative court. But even conservative courts have liberal terms – and the current term is leaning left as it enters its final two weeks.”
The reporters went on to say,
“The court has issued liberal decisions in 54 percent of the cases in which it had announced decisions as of June 22.”
They cited research undertaken by a very respected group known as the Supreme Court database. It’s generally considered to be fairly objective in making these determinations and according to that database using its own standard,
“If that trend holds, the final percentage could rival the highest since the era of the notably liberal court of the 1950s and 1960s led by Chief Justice Earl Warren.”
This is a really important article because it points to the fact that the Supreme Court is not just a court, it is made up of individuals, it is not a machine and these individuals like all individuals are susceptible to intellectual change over time. And also it’s interesting because this reflects to some degree the cases that arrive at the Supreme Court. But the court has to agree in most cases to take the case in the first place so this issue is doubly revealing. Whether it is the point of these reporters or not the importance of this article is to point to the fact that liberal change in the United States, in legal and political terms and in moral terms, has been led far more by the United States Supreme Court than by either of the other two branches of government. And looking at this particular analysis the reporters say,
“The court’s leftward movement is modest, and it remains well to the right of where it was in the Warren court years, when the percentage of liberal decisions routinely topped 70 percent. Yet the recent numbers do seem suggestive of a shift.”
Now that again is really interesting because it points back to those crucial decades of the 1950s and 60s and identifies quite explicitly the Supreme Court of the United States as the liberalizing force in American society at that time. Later in the article the reporters say,
“The court moved left in the early 1950s, remained there for almost two decades and has generally leaned right for the past 40 years.”
There’s also something really important to note there. When it points to the last 40 years and says that the court has increasingly during that time leaned right, or generally leaned right, that doesn’t mean that it goes back to a starting point before the war in court in say the late 1940s and then moved right, it means only that it moved right in comparison to the leftward shift they were undertaken by the Warren court that so reshaped American society in the second half of the 20th century. What’s also clear in this article is that there are those who are looking at this trend, and hoping that it extends to the issue of the same-sex marriage decision and the likelihood is indeed that it will and that will rank this court as even more liberal than it stood on Monday.
2) Kennedy’s gay marriage rulings result of long-term concern for the ‘right side of history’
But as I want to remind us when we talk about the court, once again it’s not a machine, it is nine human beings who listen to the cases, decide which cases they’re going to take in the first place and eventually discuss the cases and make their decisions, eventually releasing their decisions.
Sheryl Gay Stolberg in Monday’s edition of the New York Times had a front-page article entitled,
“Justice Anthony Kennedy’s Tolerance Is Seen in His Sacramento Roots.”
This has to do with Associate Justice Anthony Kennedy, who has been the key vote on most gay right cases of the last generation. He is expected again to be the crucial vote in the current case before the court on same-sex marriage. Stolberg goes back to Sacramento, which was the home place of Justice Kennedy, pointing out that it was experiences there and it was also ideas he expressed in Sacramento and as a federal court judge before being appointed to the United States Supreme Court to give an indication of why he has become such a champion for gay rights on the nation’s Highest Court. Stolberg writes,
“Now, as the Supreme Court prepares to rule on whether to grant a constitutional right to same-sex marriage, Justice Kennedy, a onetime altar boy, has emerged as an unlikely gay rights icon. At 78, he has advanced legal equality for gays more than any other American jurist.”
And as Stolberg also explains,
“Those who know him well cite a mix of factors in explaining his thinking: his views on privacy and liberty, his belief in marriage as a stabilizing force, his concern for the children of same-sex couples and his custom — in the words of one good friend, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit — of “stepping into the skin” of those his decisions affect.”
Judge Kozinski said about Justice Kennedy,
“I think it’s been an evolution. Maybe what happened is the world around him changed, and the evolution has not been so much in his own thinking, as in the world we live in.”
One of the things this article reveals by the way is how people outside the court, even those who are fairly close friends of the justices who sit on the court, spend a great deal of time trying to figure out how the justices think as well as what they think. Stolberg’s article also makes a comparison between Anthony Kennedy and Earl Warren when she writes,
“Today, legal scholars see parallels in Justice Kennedy’s record on gay rights and Chief Justice Warren’s record on civil rights, notably his landmark 1954 Brown v. Board of Education decision desegregating public schools.”
In a section of the article that should ring in our ears and make us think, Lou Cannon, the biographer of President Ronald Reagan who appointed Justice Kennedy to the court said that Kennedy stated,
“Warren was a good chief justice and a good lawyer, as well as being on the right side of history.”
That’s a most revealing phrase as we now know. It’s a phrase we are hearing over and over again and here it is being used by a very respected biographer of President Ronald Reagan as applied to someone else he has watched very carefully, Justice Anthony Kennedy appointed by Ronald Reagan to the Supreme Court. So here we have an advance word that what Anthony Kennedy wants in a very real way is to be seen as being on the right side of history. That’s the kind of political argument that has been used over and over again by those who are pushing the issue of the legalization of same-sex marriage. It is not, we need to note, however, the kind of argument that the framers of the United States Constitution considered to be a compelling argument when it comes to determining what the Constitution says and requires. Nowhere in our nation’s founding documents is there a hint that one of the roles of the United States Supreme Court is to make certain that the court finds the nation on the right side of history. The court has had spectacular moments in which it did exactly the right things such as in the Brown v. Board of Education decision. It has also ruled in other cases disastrously only to be reversed by a successive court in a later time.
In another section of this article, the specific issue of gay rights as related to Justice Kennedy comes into view as Stolberg writes,
“But the 1980 case, Beller v. Middendorf, contained an important caveat. In dense legal language, Judge Kennedy noted “substantial academic comment which argues that the choice to engage in homosexual conduct is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual’s right to privacy.”
Now what’s really important there is that that decision was written not as Justice Kennedy was a justice of the United States Supreme Court, but rather as he was a federal appeals court judge. In other words, those who appointed him to the court had access to that argument by Justice Kennedy and so did others. One of the most interesting investigative issues in this article by Stolberg on Justice Kennedy is that Lawrence tried a very liberal constitutional scholar at Harvard law school and those who are advocating for the gay-rights movement had indicated support for the nomination of Anthony Kennedy, believing that he was uniquely open to their arguments even before he was appointed to the United States Supreme Court. Looking at some of his appellate decisions including the one I just cited, Professor Tribe at Harvard law school said,
“‘I think this guy is terrific.”
So if Justice Kennedy, as he did in 2003 in the Lawrence decision and in 2013 in the Windsor decision, becomes the crucial justice in deciding the issue of the legalization of same-sex marriage and he rules for the legalization of same-sex marriage, you can draw a direct line not only back to 2013, not only back to 2003, but all the way back to 1980, even before he was appointed to the Supreme Court.
3) Legacy of Allen Weinstein reminder the truth will out eventually
Next covering the same issue at this very important historical moment, the Weekly Standard, Robert F. Nagel writes an article entitled,
“Predicting Justice Kennedy.”
The subtitle of the article is of extreme importance,
“The status of same-sex marriage shouldn’t come down to one man’s opinion.”
Now here’s what’s really crucial, Professor Nagel who is a professor of law at University of Colorado is not arguing that it shouldn’t come down to one justice’s decision. Inevitably in many cases it’s going to happen that way. What he says, quite specifically is that it shouldn’t come down to one man’s opinion. That points to one of the great divides in America today, the divide between those on the left who believe that what the justices of the Supreme Court should do is to apply their opinions about what is right and defined in the Constitution some basis, however abstract for those opinions, and those who believe as constitutional conservatives that the actual text of the Constitution should decide the issues in the context of the original intention of the framers and founders of the nation. Conservatives do not argue that the Constitution should never change. They just argue that the courts shouldn’t unilaterally change the Constitution. Rather, it should be changed through the amendment process that protects the rights and the stability, not to mention the separation of powers of our constitutional republic.
Professor Nagel looks at the fact that there is the likelihood, given his two previous major decisions as a Supreme Court Justice on this, that Justice Kennedy is going to be if not the decisive vote, then a major vote in favor of legalizing same-sex marriage and the reason for it is going to come down to Justice Kennedy’s opinion. This is what professor Nagel writes,
“The cynical—but perhaps realistic—response is that, despite the importance of state sovereignty and the unique place of marriage in human history, Justice Kennedy will vote to strike down traditional marriage laws because he has simply chosen sides in the culture wars. If true, this means that he will vote to impose his political and moral preferences—that is, one lawyer’s personal opinions will masquerade as law.”
In one of the most important parts of Professor Nagel’s article he goes back to the year 1992 and to a decision, not on same-sex marriage, but on abortion. It was in the case Planned Parenthood versus Casey in which Justice Kennedy then wrote the opinion and was the deciding vote to uphold the Roe v. Wade decision. Now to put the matter plainly, the Roe v. Wade decision legalizing abortion on demand is one of the worst decisions in the history of United States Supreme Court and as a direct result there has been the abortion of over 50 million babies in American wombs. What Professor Nagel is pointing to and Justice Kennedy’s opinion there is where he defended Roe v. Wade because of the reputation of the court and the rule of law as represented by the Supreme Court. In other words, Justice Kennedy supported Roe v. Wade, largely because he said the Supreme Court would lose respect if it reversed itself on such an important issue. Putting Justice Kennedy in the context of his tenure on the court, Nagel then writes,
“These considerations suggest that Justice Kennedy must be finding the same-sex marriage issue deeply vexing. Having been accused by Justice Antonin Scalia, among others, of abandoning law to take sides in the culture wars, Kennedy presumably understands that his previous opinions in favor of gay rights are, like the initial abortion ruling, vulnerable to charges of illegitimate overreach. Perversely, however, this intellectual tenuousness might well produce in Kennedy a sense that national unity is being dangerously undermined by those who disagree with his pronouncements on gay rights, not to mention by those who are battling the many lower federal court rulings invalidating traditional marriage laws.”
In the end all this comes back to the argument that we are to be found and should seek to be found and if necessary moved to be found on the so-called right side of history. One of the points made in this article is that Justice Kennedy has been on the court long enough that he has himself represented by his decisions on the Supreme Court what he considers to be the right side of history. That points to the likelihood that in this case, he will seek to extend the trajectory he began not just in 2003 in Lawrence, not just in 2013 in Windsor, but back in 1980 in that decision that he had already made long before he was nominated to the Supreme Court.
Christians need to remember that we are not called upon to be found on the right side of history. We’re called upon, to put the matter bluntly, to be found on the right side of eschatology. We have to believe the truth and stand by the truth and seek faithfully to live under the authority of Scripture, believing that God and God alone will vindicate the truth because after all, it is his truth because he is true. On The Briefing today, it seemed important given the issues at stake and given the central role likely to be played in this entire issue by Justice Anthony Kennedy to give particular attention as the nation at large is getting particular attention to how he is likely to rule and why. And all these articles arguments and analyses put together point to the fact that there seems to be a central focus here on seeking to be found on the right side of history.
Finally, I want to make reference to an obituary that appeared over the weekend in the New York Times, I’ll admit I just can’t pass up a good obituary because the worldview lessons are often so rich when it comes to being determined to be on the right side of history. Sometimes history has some interesting twists and turns but in reality there’s a good reason for this, the truth eventually comes out. The headline of the obituary is,
“Allen Weinstein, Historian of Alger Hiss Case, Dies at 77.”
The accusations made in the aftermath of World War II, especially during the 1960s. The State Department official Alger Hiss was in reality a Soviet spy, it was one of the great moral tales of the United States in the second half of the 20th century. Alger Hiss was the icon of the Eastern establishment and yet charges were made by Whittaker Chambers, a former editor for Time magazine, who was himself a confessed Soviet spy, that his colleague spy had been none other than Alger Hiss, one of the highest-ranking officials of the United States State Department.
William Grimes is actually here writing the obituary of Allen Weinstein, a former archivist of the United States and Weinstein is chiefly remembered for proving long after Alger Hiss was dead and his defenders were largely dead as well, that as the Soviet archives were opened after the fall the Soviet Union, indeed, there was irrefutable proof that Alger Hiss was a spy. William Grimes writes,
“Accused by Whittaker Chambers, an editor and writer at Time and a former Communist, of passing government documents to the Soviet Union when he worked for the State Department in the 1930s, Hiss was regarded as a traitor by most Americans but many liberals and leftists saw him as an innocent victim of anti-Communist paranoia. He was convicted of perjury in 1950, and Mr. Weinstein said he had started out writing the book to prove him innocent, only to reverse his judgment in the face of the evidence.”
That’s an interesting statement in itself because it tells us that Mr. Weinstein, a very capable and competent historian, set out to write a book in order to prove Alger Hiss innocent only to come across the evidence that proved beyond a shadow of a doubt that he was indeed the Soviet spy he was accused of being all the way back to the 1950s. We now know that Alger Hiss and any number of other spies and supporters of the Soviet Union supported that evil regime because they believe that it was to use this phrase again, on the right side of history. Not even close. That evil regime fell and fell apart in 1989 and its archives fell open and when those archives fell open. It was revealed that Alger Hiss was indeed a Soviet spy.
The great moral lesson for this obituary is one to which we return, those who are most determined to be found on the right side of history, may be most frustrated when the history is written.
Thanks for listening to The Briefing. For more information go to my website at AlbertMohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on The Southern Baptist Theological Seminary go to sbts.edu. For information on Boyce College just go to BoyceCollege.com.
I’ll meet you again tomorrow for The Briefing.
