The Briefing 06-28-16

Part I

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In landmark case, SCOTUS doubles down on "constitutional" right to an abortion invented 40 yrs. ago

We had every reason to believe that the Supreme Court decision on abortion to be decided this term would be very big, but we now know we underestimated just how big the case would turn out to be. In a 5-3 decision that was handed down by the Court yesterday as the Court comes to the end of its term, the Court by a 5-3 majority ruled in favor of abortion rights in a case coming from the state of Texas. But what makes this case so big is that it sets a precedent on numerous grounds.

In the first place, we have the case itself. As Robert Barnes and Mark Berman reported for the Washington Post yesterday,

“The Supreme Court struck down Texas abortion restrictions that had been widely duplicated in other states.

“A resounding win,” they wrote, “for abortion rights advocates in the courts most important consideration of the controversial issue in 25 years.”

Now, just that lead paragraph tells us that this is a generational case. You have to go back to the Casey decision in the early 1990s to come up with a case that’s anywhere close to as significant as this decision turned out to be. The importance of the case is also indicated in this lead paragraph by the fact that Barnes and Berman pointed to the fact that the abortion restrictions from Texas that were invalidated by the court yesterday had been widely duplicated and replicated in other states across the U.S.

As the Post indicated,

“Justice Anthony M. Kennedy joined the court’s liberals in the 5- to-3 decision, which said Texas’s arguments that the restrictions were meant to protect women’s health were merely cover for making abortions harder to obtain.”

The line up on the Court was almost exactly what you would predict. The majority opinion was written by Justice Stephen G. Breyer; he had been joined by liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, but also joining him was Anthony M. Kennedy. It was Kennedy who was the author of the Casey decision back in the early 1990s that set up the court precedent for the fact that states could enact restrictions on abortion if they served a purpose other than merely blocking abortion.

Yesterday’s decision by the Supreme Court, in which Kennedy was in the majority, indicated that the Court believed that the Texas laws were not basically about improving or protecting women’s health. Dissenting in the opinion were the Chief Justice of the United States John G. Roberts, Jr. and Associate Justices Clarence Thomas and Samuel A. Alito, Jr.

Putting this in the larger perspective, we have to look at the math. It was a 5-3 decision. That means that even if Justice Antonin Scalia were alive and voting against the claims that the Texas law should be invalidated, the case would’ve been decided just as it was. That’s because if on a court of nine, you have five justices, those five will always constitute a majority. The fact that Anthony M. Kennedy is now increasingly, even predictably, counted among the liberals indicates another of the seismic shifts on the Supreme Court.

Anthony Kennedy, who had been nominated to that post by President Ronald Reagan, was supposed to be a conservative jurist and, at least on many issues for many years, Anthony Kennedy was a rather conservative justice. But it is very interesting for us to note that on some of the most controversial questions of our age, including both abortion and most especially LBGT rights in the issue of same-sex marriage, Anthony Kennedy has been anything but a conservative voice—add to this the fact that last week Anthony Kennedy’s vote on the affirmative action case was also very important. This has led many liberals now to understand that they have an ally on the Court and that the liberal bloc is now not just four but probably five justices.

There’s another issue to be raised here, and that has to do with the historical transition on the Court with the death of Justice Scalia. It may well be that the very presence of Justice Scalia had been something of a break on Justice Kennedy in terms of at least some decisions on some issues. The absence of Justice Scalia may well have changed the discourse in the Court itself, if not the math.

Pro-abortion and pro-choice movements immediately celebrated the announcement that was handed down yesterday. Groups such as Planned Parenthood pointed not only to the decision, but to the fact that it now establishes a Supreme Court precedent the lower courts will be expected to follow. That kind of celebration on the pro-abortion side was signaled by today’s editorial in the New York Times released early yesterday. It was a celebration of the decision declaring,

“In the most significant victory in a generation for a woman’s right to make decisions about her own body, the Supreme Court on Monday struck down Texas’s harsh and dishonest anti-abortion law by a vote of 5 to 3.”

Now when we look at that lead sentence in terms of the editorial board’s position on the decision, they indeed pointed to its significance—the most significant victory in a generation. But then they described it as a victory,

“For a woman’s right to make decisions about her own body.”

There, you see an indication of that great worldview divide in the United States in which abortion is so much front and center. The question is, what’s the important moral issue? What’s the important legal or constitutional question? According to the pro-abortion movement and its logic, the only significant issue is the woman. The only significant question is whether or not she wants to be pregnant. The only significant consideration is whether or not she has access to abortion.

Since the Casey decision a generation ago, many states have moved to enact legislative restrictions on abortion. Now, the New York Times declares, the case handed down yesterday could spell “the end for many if not most of these regressive, unconstitutional laws.”

There’s another aspect of this case that’s really important, and it has to do with a concurring decision by one of the justices in the majority, Justice Ruth Bader Ginsburg. In her own concurrence—that is, she understood the issue to be so important that even as she was in the majority she decided to write her own separate concurring opinion— Justice Ginsburg sought to write into law the statement that abortion is safe, at least in terms of a women’s health.

In the most crucial sentence of her concurring opinion, Justice Ginsburg wrote,

“So long as this court adheres to Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, targeted regulation of abortion provider laws that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.”

That’s an extremely important sentence in one concurring opinion in yesterday’s abortion decision. She cites Roe v. Wade and the Casey decision saying that so long as those decisions stand, there basically can be very little any state can do to place any restrictions whatsoever on abortion. It is a stunning but very, very clear declaration.

Many Americans concerned about the sanctity of life and concerned about the decision handed down yesterday will recognize the name of Justice Ruth Bader Ginsburg without understanding that long before she became a justice on the United States Supreme Court, she was a major lawyer for abortion rights. Justice Ginsburg knew exactly what she was doing yesterday when she wrote this concurring opinion and inserted that sentence within it. It is an absolute effort to try to block any state from placing any restriction on abortion.

There were two very important dissenting opinions released also yesterday, the one was written by Justice Alito joined by the Chief Justice. In it, he pointed to the law adopted in Texas that the Court had just struck down, and he wrote,

“The law was one of many enacted by states in the wake of the Kermit Gosnell scandal in which a physician who ran an abortion clinic in Philadelphia was convicted for the first-degree murder of three infants who were born alive and for the manslaughter of a patient.”

That’s the kind of clarity that is much-needed in the wake of yesterday’s decision. Justice Alito is absolutely right. It was in the wake of the scandal and the tragedy of the Gosnell case in Philadelphia that many states did rush to enact restrictions that would prevent similar atrocities from happening in their own state.

Let’s just rehearse the Kermit Gosnell case exactly as Justice Alito cited it. Here you had an abortion doctor running for many years a clinic in the state of Pennsylvania in which he was later found guilty of first-degree murder for the way that he brought about abortions. Justice Alito pointed to the fact that the Court struck down laws saying they had nothing to do with women’s health, when there was a very clear case to be made that women’s health was exactly an issue, if not the only issue.

Very revealingly in his majority opinion, Justice Breyer cited the Gosnell case saying,

“Gosnell’s behavior was terribly wrong.”

That has to go down as one of the most ridiculous moral understatements in recent American history. He went on to say,

“But there is no reason to believe that an extra layer of regulation would’ve affected that behavior.”

That is a moral evasion. While an extra level of regulations may not have prevented his behavior, they would’ve revealed it, and that’s the point. They would’ve revealed it before there was a further loss of life.

Justice Clarence Thomas in his own dissent wrote,

“Eighty years on the Court has come full circle. The Court has simultaneously transformed judicially created rights, like the right to abortion, into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting or not; and if not, the judiciary has no business creating ad hoc exemptions so that others can assert rights that seem especially important to vindicate.

“A law,” wrote the Justice, “either infringes a constitutional right or not. There is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy driven value judgments until the last threads of its legitimacy disappear.”

What is Justice Thomas saying? Justice Thomas is saying that the United States Constitution never mentions the issue of abortion. Abortion rights, as declared by the Court in the 1973 Roe v. Wade decision, were, as he says, a political and constitutional invention by the Court that actually wanted to enact policy rather than constitutional interpretation. Justice Thomas very accurately pointed to yesterday’s decision and identified the fact that the Court is maintaining that very same practice of abandoning the Constitution and, as he said, clear rights that are enumerated in the Constitution in favor of invented rights that are not.

But the entire picture—the response to yesterday’s decision, the decision itself, the majority opinion, the concurring majority opinion, and the dissenting opinions—all point to one central issue. And that is the fact that abortion is now, according to the United States Supreme Court, not only a constitutional right but a constitutional right that may not be infringed upon by the states in terms of what the states have claimed legislatively were legitimate restrictions that were requirements to protect a woman’s health.

But what’s really going on here is far deeper. We’re looking at the fact that the modern project to declare absolute human autonomy has developed an idolatry of that very human autonomy that is not only unsustainable, but downright deadly. You’ll notice that in virtually all of the coverage of yesterday’s decision, the issue is singularly the woman. The unborn child does not show up in any way as being even to any extent morally important. That’s because in terms of the rise of the abortion rights movement in the United States, it was premised upon that idolatry, a personal autonomy in which the woman alone is the important moral figure, in which the woman alone is the deciding figure in terms of the life or death of the life within her.

Abortion in this case becomes the sacrament of this new idolatry. It is the sacrament of a modern humanistic religion to which the society is increasingly committed. Abortion is so absolutely central to the sexual revolutionaries and to the moral revolution around us, because if abortion were to be found in any way to be morally wrong, the entire edifice of their moral revolution would fall apart.

The invention of what was declared to be a woman’s right to choose abortion in 1973 in the Roe decision set the stage for just a year ago the Court to invent yet another right, and that is the right for two people of the same gender to marry. Justice Thomas nailed the issue squarely. Once you begin inventing rights, rights are whatever you decide to invent.

The editorial board of the New York Times and I are in odd agreement on this issue. Yesterday’s decision was really, really big in terms of its significance and in terms of its importance. Here’s where we differ: the New York Times looked to the decision and celebrated. I look to the decision and mourn.

Part II

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Ex-Gov. of Virginia avoids conviction in unanimous SCOTUS decision upholding due process

Next, also at the Supreme Court, a rather surprising decision, this one unanimous in the case of the conviction of a former governor of the state of Virginia. As Adam Liptak reported for the New York Times,

“The Supreme Court on Monday made it harder to prosecute public officials for corruption, unanimously overturning the conviction of Bob McDonnell, a former governor of Virginia.”

Chief Justice John Roberts, writing for the Court, narrowed the definition, according to the Times, of what sort of official act can serve as the basis of a corruption prosecution. The act must be, according to the Chief Justice, a formal, specific, and focused exercise of government power, “such as a lawsuit, hearing, or administrative determination.”

According to the Chief Justice and this unanimous decision from the Court, prosecutors, including most especially here federal prosecutors, must prove that the defendant made a decision or took action on the matter or agreed to do so. Now that’s really important. It’s important on the one hand because when you see a unanimous decision by the U.S. Supreme Court; you see an issue in which the Court means to establish a very clear position and to send an exceedingly clear signal.

A little bit of background on that comes down to the issue that when you have nine justices, or in this case eight now serving justices, you have eight different lawyers, eight different judges, eight different interpretations of the facts and of the constitutional issues at stake. The presence of a concurring opinion in the abortion decision yesterday and two different dissenting opinions points to the fact that even when justices agree on the yay or nay question on the case, they often disagree in terms of how they get there.

The unanimous decision in an opinion written by the Chief Justice yesterday is a way in which the Court is saying, “We’re not even going to point to differences, we’re merely going to assert the fact that we are absolutely unanimous in reaching this decision.” What was the case about? Well, the case was about what was alleged to be official corruption undertaken by the man who was at the time the Governor of Virginia—that is, former Governor Robert McDonnell.

He and his wife are both convicted in terms of criminal charges brought by federal prosecutors that they had abused their office by receiving gifts from a political donor. This is known in the Latin is quid pro quo, and yet what the High Court declared yesterday was, there was no quid pro quo ever proved by federal prosecutors. There was no action that was taken in any official capacity by the governor on the basis of the gifts that he gave. Now the circumstances of the case are very, very troubling. As the Chief Justice wrote,

“There is no doubt that this case is distasteful; it may be worse than that,” he wrote. “But our concern,” he said concerning the Court, “is not with tawdry tales of Ferraris, Rolexes and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.”

Why should Christians consider this case important? Well it points to a very important issue. Our constitutional order, with its guarantee of due process and of constitutional protections for our liberty, means that at times the High Court has to step in to avoid a federal government and federal prosecutors using the law in order, basically, to oppress the people.

Now, you’ll notice in this case that the justices did not say that the former Governor and his wife were innocent of wrongdoing. According to the Chief Justice, this couple may indeed have been involved in wrongdoing. But according to the Court, unanimously, they actually didn’t break the law. That’s the issue. Federal prosecutors, they are arguing, cannot use the law when there is no adequate evidence that the law was broken. America’s commitment to limited government also means a commitment to the limited reach of prosecutors, who can act on behalf of the government with the threat of life, liberty, and the pursuit of happiness being denied.

In that light, yesterday’s decision was important, but it’s especially important because the Supreme Court, handing down its unanimous decision, appeared to say to federal prosecutors and to lower courts, “We don’t want to see any more cases like this.” The Court effectively said, “If a state wants to avoid this kind of behavior, they need to make it illegal to receive these kinds of gifts”—something, we need to note, that the Virginia legislature did just about a year after these convictions.

Before leaving these cases, just keep in mind that we talk so often about what happens at the United States Supreme Court because there is no way to avoid it. That’s because in today’s contemporary American culture, the Court is now the primary arena where so many of these questions are settled. There are many reasons for that. This is not clearly what the founders intended in terms of the role Supreme Court, but there are numerous reasons why so many of these issues now come down to the Court for the decision-making.

The first of the issues is that Congress in many ways has avoided its responsibility in terms of adjudicating these matters by means of legislation. Furthermore, it is also the case that those who are trying to go around the Democratic process in Congress now know that they may be able to short-circuit the system by going to the Supreme Court. In any event, it means that for Christians, as we’re trying to understand what’s going on around us, our attention quite regularly, if troublingly, has to be directed towards the Supreme Court of the United States.

Part III

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Most British millennials were strongly against Brexit—but not enough to vote.

Finally, in terms of some of the headlines we’ve been talking about lately, the Brexit vote’s big. I draw our attention to it today not primarily because of anything related to that vote, but to the fact that there are many people complaining about it who, as it turns out, didn’t vote. The particular population in mind: young people in Britain. This tells us a very great deal. Max Bearak, writing for the Washington Post, tells us that,

“Young Brits are angry about older people deciding their future.”

That is to say, if you look at the demographics of the Brexit vote, there was an overwhelming generational pattern. Those who were 60 or 65 and over voted overwhelmingly for the Brexit— that is, for Britain leaving the European Union. Meanwhile, younger Britons were overwhelmingly against it, in some polls indicating that 80 to 85 to 90% of young Britons were against Britain leaving the union. And yet as we now know, the vote came down to 52% of Brits voting to leave the union, and younger Brits are now complaining that the decision was made by older British citizens.

But here’s where the Washington Post and many British media are now directing a curious question. If these younger Britons were so against the proposition and if they are so resentful now of the fact that it passed by the 52-48 vote, why is it also true that apparently they didn’t vote? As it turns out, young Brits may have been more quick to comment on the issue, especially in terms of social media—to state the matter, they may have been more willing to Tweet about the issue than actually go to the voting place and vote.

That tells us perhaps something about the generation, at least, of young British citizens, but it also says something about the future of democracy, something deeply troubling. It’s one thing for people to complain about the vote, but it’s another thing to find out that the very people registering the complaint didn’t actually go and vote themselves.

Another interesting aspect of this question is the issue of how long voters will “live with” the decision they’ve just made. According to actuaries in Britain, those who are voting at age older than 65 are likely to live about 16 years with this decision. Those aged 18 to 24 are likely on estimate an average to live about 69 years individually with the decision. But the folks who are likely to live with the decision, as it’s described here, for 69 years didn’t care enough to vote.

It’s one thing, I guess, to care enough to Tweet. It’s another thing to care enough to vote. Democracy requires paying more attention to the latter than to the former.