The Briefing 10-03-16

Part I

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As the Supreme Court begins a new term, the contest over its direction centers on the 2016 election

This week marks the start of a new term for the United States Supreme Court, and looming in the background and looming huge is the 2016 presidential election, which every informed observer understands is the hinge point for the future of the court. And liberals in the United States are poised to what they see as a massive reshaping of the highest court in the land. The current cover story in the New Yorker includes this article by Jeffrey Toobin,

“The next Supreme Court after decades of conservatism, are we headed for a new liberal era?”

Toobin, who has observed the Supreme Court for decades, certainly seems to think so, and quite openly to hope so. That’s a perspective we expect to be shared by the readers of the New Yorker, a rather liberal magazine. But here we need asked the question, if the court is now poised for what is seen as a potential new liberal era, what was the supposedly conservative era that would now be coming to a close? That would be dated only back to the early 1980’s with the appointments made by then-president Ronald Reagan. Previous to that, we saw a generation and a half, perhaps even two generations, going back to the 1950s of the Supreme Court being understood as being very much more liberal than the American people. This went back to the era when Earl Warren and Warren Burger served as chief justices of the United States.

In the more recent era, there has been some constraint on the court and some conservative redirection and correction, but those who have been watching the Supreme Court for decades, they’ll understand that at least since the end of World War II it has basically been a more liberalizing force in American life. Most especially, remember the fact that we are now being promised, according to this cover story in the New Yorker and elsewhere, a new liberal era on the court. But this would be after the liberal era in which the court authorized abortion on demand and nationalized the issue in 1973 in the Roe v. Wade decision. And in the supposedly conservative era that is now referenced in this article, in 2015 it legalized same-sex marriage across the land in the Obergefell decision. Even as conservatives have won some victories in terms of the Supreme Court given the appointments by President Reagan and other Republican presidents, in reality, the Supreme Court, even throughout this era, has been considerably to the left of the American public. Now we’re being threatened or promised with the idea that the court may be considerably more liberal in the future.

Noah Feldman, a professor of law at Harvard University said,

“There has not been a definitively liberal majority on the Supreme Court since Nixon was president. Ever since then liberals have sometimes managed to cobble together majorities to avoid losing on issues like affirmative action and abortion. But the energy and initiative have been on the conservative side. That stopped at least for now this year.”

What stopped this according to Professor Feldman was the sudden death this past February of Associate Justice Antonin Scalia, by any measure the most influential conservative on the Supreme Court and the first appointee made by President Reagan that clearly indicated a corrective course for the court in recent decades. But now even that course correction has come to an end as was made clear by the conclusion of the last completed Supreme Court term when liberals were understood by both sides to have won far more victories than conservatives. The court begins this new term with only eight seated justices, that’s because of the empty seat of the late Justice Scalia. Two-hundred days ago yesterday, President Barack Obama nominated another judge to sit in his place, that is Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia. But the United States Senate under Republican leadership has not yet taken up hearings about that nomination and has instead announced that it will not do so until after the 2016 presidential election. But this means that there are now on the court eight justices, four appointed by Republican presidents and four by Democratic presidents.

As Toobin helpfully reminds us, this means Chief Justice John G. Roberts, nominated by George W. Bush; Justice Anthony Kennedy, nominated by Ronald Reagan; Clarence Thomas by George H.W. Bush; and Samuel Alito by George W. Bush—those are the four justices of the Supreme Court appointed by Republican presidents. Appointed by Democrats are Justice Ruth Bader Ginsburg, appointed by Bill Clinton; Justice Stephen Breyer also by Clinton; and two justices appointed by Barack Obama, Sonia Sotomayor and Elena Kagan. At this point, you really don’t have to know much about law to understand what’s at stake. All you have to understand is math. A 4-4 court means that there are often basic matters that come to a draw. That was clear in the last half of the last term and that’s the situation as the new term begins. But once you have a ninth justice confirmed, then you have the possibility, indeed the probability, of a succession of 5-4 votes and the appointment of that ninth justice then points to the fact that there is this hinge moment in history the United States Supreme Court. Presumably now it could go in either direction, depending on which candidate is elected as President of the United States.

The expectation of a Democratic victory in the presidential race has given a great deal of confidence to judicial and legal liberals who are now chomping at the bit to consider the future of the court in a decidedly new liberal era. As Toobin writes,

“The liberal wish list expands rapidly from there—limited only by the imaginations of law professors, advocates, and the Justices themselves. One possibility is that the Court might recognize a constitutional right to counsel in civil cases. (Currently, only criminal defendants are guaranteed legal representation.) In criminal law, the Court might adopt the idea, which Sotomayor has suggested, that the Constitution forbids incarcerating individuals who are too poor to pay fines. Several scholars have proposed a constitutional right to education, which might force increased funding for poor districts, or, even more speculatively, a right to a living wage.”

We should note that this represents a liberal wish list of sorts, and that’s exactly what we should expect, when more progressive and liberal forces in this country believe that they will soon be able to achieve many of the victories denied them in the legislature by going to the United States Supreme Court. As Toobin concludes,

“For the first time in decades, there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it.”

He then cites Justin Driver as saying,

“Liberals in the Academy are now devising constitutional theories with and eye on the composition of the court.”

Toobin then concludes,

“The hopes for a liberal court will begin or just as certainly end with the results on Election Day.”

All this points to the fundamental importance of the court in the United States at present, especially in terms of the Supreme Court as the engine of so much of the social and moral and cultural change that has taken place in the last several generations. It also points to the importance of the election and the fact that elections have consequences. The composition of the Supreme Court is just one of those consequences. It’s also really important for us to note that this is the first time in a generation and more that voters have faced a presidential election with an open seat on the U.S. Supreme Court. Noah Feldman, cited in that article by Jeffrey Toobin at the New Yorker, has written his own series of articles at Bloomberg BusinessWeek, and he says, that,

“Anticipated decisions on religious liberty, union dues and presidential power over deportation will have to wait for the court to return to nine justices. The big-ticket cases that were decided, on abortion and affirmative action, were products of Justice Anthony Kennedy’s move to the left.”

Now that underlines the fact that conservatives have more often than not been disappointed by the appointments made even by conservative presidents to the U.S. Supreme Court. Liberals are rarely surprised by a justice moving to the right. The only example of that in recent American history might be the late Justice Byron White. But when it comes to conservatives, we have learned over sad experience that those who are appointed to the court often moved to the left. And that is nowhere better exemplified than in Justice Anthony Kennedy. On issues like abortion, and most particularly LGBT issues, Anthony Kennedy has actually written so many of the majority opinions in these cases, because the liberal justices were absolutely dependent upon him abandoning his conservative colleagues in order to make the majorities for these very revolutionary decisions.

In another article published just last week, Noah Feldman raised the question as to why Hillary Clinton, the Democratic presidential nominee is not making more about the Supreme Court in terms of her campaign. His analysis of why is also very important to us. He says in the first place, Hillary Clinton has a harder time trying to activate her base on the issues to come before the Supreme Court precisely because, in his words,

“Much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.”

Then he points out the very interesting political assessment, and that is that in trying to reach out to so-called moderate voters in the United States, those very elusive swing voters, Hillary Clinton is not going to risk telling the truth about what she would do with the Supreme Court, promising a more liberal future, because that might scare off those very voters. After election day they’re likely soon to find out.

The 2016 presidential election finds many evangelical Christians absolutely perplexed as to the political choice before us. In more recent decades and presidential election cycles it has been relatively easy for evangelical Christians to understand how the court and nominations to the court play into the presidential election decision. All of that gets considerably more complicated in 2016 because of the nature not only of the Democratic nominee, but also of the Republican presidential nominee Donald Trump. He is someone who to say the very least does not have a long track record in terms of supporting more conservative understandings of the law and conservative Supreme Court justices. Donald Trump’s affirmations and pledges of the sort that he will appoint only conservative nominees to the court might be enough to win him many of the uncertain Republicans and conservatives who had not chosen him as their chief candidate in the 2016 Republican nomination race. But that is something that only time will tell, and there are so many other issues swirling about issues of importance in the 2016 presidential election that it’s hard for conservatives to know exactly how the court should be measured alongside questions such as candidate credibility and character. This cover story in The New Yorker this week by Jeffrey Toobin points to the fact that the court looms large in the 2016 election, larger in one sense than in any previous election cycle precisely because of that open seat of the late Justice Scalia. But even as in that sense, the Supreme Court looms larger in this presidential election year, it also looms stranger. And that’s because of the unexpected and unprecedented complexities and confusions of the 2016 presidential election.

We should be very concerned about the prospect of an even more activist and liberal court under perspective appointments by a President Hillary Clinton. But it’s also unclear that we would know exactly what we might be getting in terms of the totality of a presidency of Donald J. Trump. It’s not at all clear this year how all of this is to be factored into the equation, and individual faithful Christians seeking to operate on the basis of a biblical worldview and operate as faithful Christian citizens may come to very different conclusions about how exactly we might vote. This also, Christians should keep in mind, affirms the importance of the down ticket races, as they are called, especially races for the United States Senate. Our Constitution calls for the President of the United States to make nominations to the Supreme Court that then must be confirmed by the United States Senate. It will thus matter greatly who is in control of the Senate, whether or not it has a conservative or a liberal majority. Given today’s partisan political divide in the United States, that means whether there is a Republican or a Democratic majority in the United States Senate.

The worst-case scenario in terms of a liberal trajectory of the court would be that Hillary Clinton is elected president and she has a super majority of Democratic senators in the United States Senate. The first, politically speaking, is more likely than the second. But if there is a phenomenon of the so-called sweep election down ticket in the United States House and more strategically in the United States Senate, there could be an even more massive shift on the United States Supreme Court. That too affirms the fact that elections always have consequences.

Part II

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Canadian United Church torn over whether or not to remove atheist minister of a Christian church?

Next, a very important story from Canada. Douglas Quan, reporting for the National Post of Toronto writes,

“A United Church of Canada minister who is a self-professed atheist and has been the subject of an unprecedented probe into her theological beliefs is one step closer to being removed from the pulpit.

“Sub-executive members of the church’s Toronto Conference announced Thursday they have asked the church’s general council, the most senior governance body, to hold a formal hearing to decide whether Rev. Gretta Vosper, who does not believe in God or the Bible, should be placed on the disciplinary ‘Discontinued Service List.’”

The statement made by the Toronto conference body said,

“Some will be disappointed and angry that this action has been taken, believing that the United Church may be turning its back on a history of openness and inclusivity. Others have been frustrated that the United Church has allowed someone to be a minister in a Christian church while disavowing the major aspects of the Christian faith. There is no unanimity in the church about what to do.”

There is no doubt that this is headline news, but the bigger question is how this story could develop in the first place. How could there be a minister who is a self-professed, self-confessed atheist in a pulpit to face even the reality of this kind of disciplinary hearing? And how could the church have an open question about whether or not an atheist minister should be removed from the pulpit? Well, that points back to the fact that here we have a perfect parable of liberal Protestantism, not only in Canada but in the United States and throughout the world, most importantly in Western Europe. We’re looking at the fact that liberal theology has so infected those liberal denominations that they find themselves uncertain of what to do when now of all things an atheist shows up in the pulpit. Here we have to draw the line and point out that the distinction here is really between Gretta Vosper, who is to give her credit a self-acknowledged atheist, and so many others who for decades have stood in the very same kinds of pulpits and who were functional atheists without the courage to identify their actual lack of belief.

This has been made clear by historians and others who have watched liberal Protestantism from something of a distance. The late Eugene Genovese, an American historian, pointed to the fact that as a Marxist atheist, he would read liberal Protestant theologians and understand, as he said, with the warm feeling of recognition that they were actually fellow unbelievers. Similarly, Sidney Hook, the late philosopher who was himself very much an atheist, looked at the liberal Protestant theologian Paul Tillich during his own lifetime and argued in effect that as an atheist, it takes one to know one. And as an atheist, Sidney Hook read the theology of Paul Tillich and recognized that it was itself a rather undistilled, though sophisticated, form of atheism.

The United Church of Canada traces itself back to a union of liberal Protestant denominations in that country back beginning in 1925. The unfolding story of that denomination is an unfolding story of the embrace of theological liberalism. As recently as the late 1990s, the church had a moderator who openly denied the deity of Christ and Christ’s bodily resurrection from the dead. The church adopted a revised confession of faith or creed, which is basically devoid of many of the necessary and central historic doctrines of the Christian faith. Furthermore, Margaret Wente, writing back in 2012 before the Vosper case became a legal matter in the court, wrote that,

“For many years, the United Church was a pillar of Canadian society. Its leaders were respected public figures. It was – and remains – the biggest Protestant denomination in a country that, outside Quebec, has been largely shaped by centuries of Protestant tradition.

“But today, the church is literally dying. The average age of its members is 65. They believe in many things, but they do not necessarily believe in God. Some congregations,” she wrote back in 2012, “proudly describe themselves as ‘post-theistic,’ which is a good thing because, as one church elder said, it shows the church is not ‘stuck in the past.’ Besides, who needs God when you’ve got Israel to kick around?”

Wente’s article published in the Globe and Mail made very clear that,

“The effort to become more progressive and to reach out to a new generation of worshipers has been a colossal flop.”

But all this points to the inevitable result of adopting a liberal theology in attempting to accommodate Christian beliefs to the changing standards of whatever worldview might currently prevail. That’s the very idea of liberal Protestantism and liberal theology, and that points to the fact that not only has it been a colossal flop in terms of trying to reach out to the culture, it has led to a situation in which the church finds itself with self-declared atheists in the pulpit and, as the article published just in recent days makes very clear, uncertain about what to do about the fact. Interestingly, the report from the Toronto branch of the church said,

“The committee read the submissions and listened very carefully to determine whether Ms. Vosper’s beliefs are in essential agreement with the statement of doctrine of the United Church. This,” they write, “is a crucial question asked of all potential ordinance to determine whether they are suitable for ministry within the United Church of Canada. We have concluded,” they wrote, “that if Gretta Vosper were before us today seeking to be ordained, the Toronto Conference interview committee would not recommend her. In our opinion, she is not suitable to continue in the ordained ministry, because she does not believe in God, Jesus Christ or the Holy Spirit. Ms. Vosper,” they wrote, “does not recognize the primacy of Scripture. She will not conduct the sacraments and she is no longer in essential agreement with the statement of doctrine of the United Church of Canada.”

The big lesson for all of us is this. When you have a church that is trying its very best to keep up with the theological trends and to compromise and to reject any Christian doctrine that appears out of step with the modern world, that has begun to show its acceptance and inclusivity by accepting virtually every degree of unbelief and every form of heresy, it finds itself in the position where at least this one group in Canada has decided by its Toronto committee to draw a line. But it is not at all clear that line will be held by the church court on appeal.

The language in the media might be confusing, and in some cases it might be journalistic opportunism, the very idea of the sensationalism of an atheist in the pulpit. But the fact that the media would find this surprising doesn’t mean that Christians looking at these liberal denominations can afford to be shocked. But consider, nonetheless, the striking language of this report saying that this minister,

“…does not believe in God, Jesus Christ of the Holy Spirit, does not recognize the primacy of Scripture, will not conduct the sacraments and is no longer in essential agreement with the statement of doctrine of the United Church of Canada.”

You can look it up, but that statement of doctrine is very difficult for even an unbeliever not to accept in terms of its laxity and generalities. The endgame of liberal theology is made very clear in an open letter sent by the moderator of the United Church of Canada in recent days, that is the Right Rev. Jordan Cantwell. He wrote,

“Feelings in the church about the suitability for ministry of a self-proclaimed atheist vary greatly. The diversity of letters, e-mails, and phone calls on this subject, received by me and others, attests to that. At the heart of the concerns being raised is a tension between two core values, both of which are central to our identity as United Church. The first is our faith in God. The second is our commitment to being an open and inclusive church.”

Well, full stop there for just a moment. Here you have two core values, both of which are described as central to the identity of this church. The first, in an absolute reduction of theological conviction, is “our faith in God.” But the second presented as equal to it in authority, centrality and value is “a commitment to being an open and inclusive church.”

Well, to state the obvious, if your commitment to being an open and inclusive church is on par with theism, that is a basic belief in God, don’t be at all surprised, much less shocked, when an atheist shows up in the pulpit. Later in this letter he wrote this,

“But many people have different expectations of those in ministry leadership who have committed to teach and to preach the faith tradition of the church and preside at the sacraments. The idea that an atheist would be serving as a minister of a United Church congregation leaves them scratching their heads. For some this is simply a natural extension of our commitment to be an open, inclusive, and questioning church. For others it is a violation of the covenant entered into by an ordered minister at ordination or commissioning. Like so many important issues in our church, there are many points of view.”

So many points of view indeed. One of the most essential New Testament marks of the church is the unity of the church in truth. And here you have the very, very important lesson for all of us to observe. Once a church decides that it’s going to be so open and inclusive that it will accept both orthodox and heterodox or heretical positions within its membership and its clergy, it will not be long before Theology A and Theology B gives way to no theology at all or, in other words, an atheist in the pulpit and a church not at all certain all the way up to its moderator of what to do about that fact.