The United States Supreme Court Building in Washington DC. Surprisingly void of people, this image shows the entire building set under a partially cloudy sky.

Wednesday, June 27, 2018

The Briefing

June 27, 2018

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Wednesday, June 27, 2018. I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

Supreme Court reinforces authority of the executive branch, upholds travel ban

Most Americans are well aware that there are three major branches of our federal government, the Executive branch headed by the President of the United States as both Chief Executive and Commander in Chief, and then the Legislative branch primarily responsible, by no coincidence, for legislation, for the passage of laws that are then sent to the president for signature or for veto. The Legislative branch is made up of two different houses: the House of Representatives and the United States Senate.

The third branch of government, most Americans will quickly say, is the Supreme Court of the United States. That’s not exactly right. The third branch of government is the entirety of the federal judiciary, but there is no question that the most important unit is the supreme unit of the federal judiciary, the Supreme Court of the United States. Even as the Supreme Court and all of the federal courts are in operation and have been since the beginning of our constitutional order, most of the actions of the court, and for that matter, the court itself, they tend to be outside the daily conscious attention of most Americans.

When the Supreme Court hands down its most crucial decisions, Americans have to pay attention because at that moment, the Supreme Court of the United States, and that means the entire weight of the federal judiciary is, at that point, speaking on behalf of the federal government of the United States. The Supreme Court has also assumed the responsibility that, arguably, is beyond the actual text of the constitution, but it was argued even back in the earliest years of the American experience that it was a power implied in the constitution. That power’s often referred to as the power of judicial review. It goes back to one of the earliest cases faced by the court that was the case Marbury vs. Madison.

In that case, the Supreme Court claimed the authority to review actions undertaken by Congress. At the same time, the federal judiciary has also checked actions of the Executive branch. As you look at the major decisions handed down yesterday, there were two unquestionably major decisions handed down by the court yesterday. You are looking at the exercise of the Supreme Court of the United States in determining how the constitution relates, first of all, to actions undertaken by the Executive branch of the United States, and secondly, the court’s review of actions undertaken by one of the state legislatures.

The case that got the most attention yesterday, and understandably so, was officially entitled Trump, President of the United States and others versus Hawaii and others. Why that particular name on this kind of decision, this kind of case that was considered and now decided by the Supreme Court of the United States? It’s because one party in this case was the President of the United States, but not acting as an individual as Donald J. Trump, but rather acting in his constitutional role as President of the United States. Thus, he is identified as Trump, President of the United States.

Why the “and others”? It is because the “and others” would include those officials of the executive branch who enacted and, furthermore, detailed the decision and the policy handed down by the President that was reviewed by the Supreme Court in this case. Why “the state of Hawaii and others”? It is because Hawaii, as a state government, was the first state government to bring a federal court challenge to what was then identified as President Trump’s travel ban policy. By the time the court heard the case, other states had also joined in federal court action. All of these were put together in one case. The decision was handed down yesterday.

The decision, as said, was a 5-4 decision. That means it was very close. Both of the big cases handed down yesterday were 5-4 decisions. We have seen that pattern over the last 20 years. We have seen a division on the court usually, but not always a very predictable division between more liberal justices appointed by Democratic presidents and more conservative justices appointed by Republican presidents. It’s not always that predictable, but in defiance of the idea that justices are merely passive and objective observers, the reality is, going back at least to the midpoint of the 20th century, there has been a great deal of predictability largely on the basis of the partisan identity, the party affiliation of the president who nominates the individual justices.

Adam Liptak and Michael D. Shear from the New York Times summarized this story, “President Trump acted lawfully in imposing limits on travel from several predominantly Muslim nations, the Supreme Court has ruled.” The vote was 5-4 with the courts conservatives in the majority. Writing for the majority, Chief Justice John G. Roberts, Jr. said that, “President Trump had ample statutory authority to make national security judgments in the realm of immigration, and he rejected a constitutional challenge to Mr. Trump’s latest executive order on the matter. His third, this one issued as a proclamation in September.”

The New York Times article goes on to state that the Chief Justice acknowledged in his majority opinion for the court that Mr. Trump had made many statements concerning his desire to impose what was defined as a Muslim ban, but then, in some of the most important language of the decision, the Chief Justice of the United States wrote, and I quote, “The issue before us is not whether to denounce the statements,” meaning the statements by the President of the United States. “It is instead,” said the Chief Justice, “the significance of those statements in reviewing a presidential directive neutral on its face, addressing a matter within the core of executive responsibility.” The Chief Justice went on to say, “In doing so, we must consider not only the statements of a particular president, but also the authority of the presidency itself.”

That’s the most important constitutional issue at stake in this decision handed down yesterday. The five justices of the court in the majority ruled that the President of the United States had acted not only within his authority but well within his authority in establishing what has been defined as this travel ban. It originally was extended to eight nations. It is now extended to seven after the nation of Chad was taken off of the list. The challenges most importantly coming from state governments such as Hawaii constituted the claim that the President was acting in a way that demonstrated religious bias. That’s because several of the nations on the list are predominantly Muslim and also because the President of the United States, both before and after his inauguration as President, had made statements calling for a Muslim ban, a Muslim travel ban.

As you’re looking at the decision handed down yesterday, this decision, this is what the five justices of the Supreme Court in the majority were saying. They were saying, “It is interesting that Donald J. Trump and later, President Donald Trump, made statements defining this act as a Muslim ban, as a ban on Muslims traveling to the United States,” but they said, “The core issue in constitutional review is not the words of the President but the words of the policy handed down by the President.” As the Chief Justice said yesterday, the actual policy that was at stake in this travel ban was a policy that was, here’s the constitutional language, neutral on its face. That’s the most important constitutional point that was made here.

The policy itself, said the majority of justices, was not discriminatory on a religious basis because there was no religious bias that was indicated in the actual language of the policy. The justices in the majority made very clear that they were looking at the role and authority of the President of the United States, of the presidency. They were not looking at the words and at the actions of any individual president, though of course, the case was related to a specific president, the current President of the United States.

The five justices simultaneously made the point that they were looking at the actual words of the policy, not at all the words of explanations made by the President or members of his administration. Furthermore, they were looking at the powers in the constitution of the presidency. Furthermore, they were looking at the role of the President as Chief Executive. That becomes very crucial here, and this is a part of the argument that’s largely missing from the coverage in the mainstream media. The laws concerning immigration and many of the laws concerning entry into this country have been passed by successive Congresses and signed into law by successive presidents.

The current President of the United States is actually, the court’s majority said, acting within the current legislation, not only within the bounds of constitutional authority but also within the bounds of the laws that have been passed by Congress on these very issues. That is to say, and this is a very important point for all of us to understand as we think about the judiciary, the court has to rule on actual language of legislation or actual language of executive orders or administration policies, and the court must take the long view of constitutional review, which means not just looking at any individual president, but looking at the Office of President, at the constitutional role of the President of the United States.

In the words of the Chief Justice, the proclamation, that’s the policy called the travel ban by many, he went on to say, “It’s expressly premised on legitimate purposes preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” The Trump administration said when the policy was enacted, that it was acting because the nations on the list had inadequate security provisions and furthermore, that other nations also had inadequate security provisions in so far as people from those original eight nations may travel to a second or third nation on the way to the United States.

The travel ban, as it was called, was not only an attempt to require those nations on the list to improve their security and vetting processes but also to require other nations, through which those nationals might pass, to do the same. The justices in the majority included Justices Anthony M. Kennedy, Clarence Thomas, Samuel Alito, Jr., and Neil M. Gorsuch, the newest member of the Supreme Court.

In response and in what was described as a searing descent, what’s interesting is that those two words, searing descent were so often attributed to the late conservative justice, Antonin Scalia. In this case, it was one of the liberal justices whose descent was identified as searing. As the New York Times said, Justice Sotomayor delivered her searing descent from the bench in which she accused the court’s majority of upholding an openly discriminatory policy motivated by animus to a religious minority.

Now, this race is an interesting question, and many in the mainstream media press the question further, asking where are the conservative religious liberty advocates on this issue that constitutes a ban on Muslim entry into the United States? Well, the reality is that the travel ban does not stipulate anything about being Muslim, and furthermore, if you add up all the nations that are covered by the travel ban, they represent a rather small minority of Muslims around the world. There was no administration ban on Muslims entering the United States, but that does raise an interesting question.

As you look at the specific nations on the list or at least a majority of those nations, you can leave on this consideration out the nations of Venezuela and North Korea, what becomes very apparent is the fact that there are, in some cases, limitations on separating the Muslim identity of some nations and regimes because they declare themselves to be Islamic Republics. If you take the logic of Justice Sotomayor to its logical extension, any action taken against any of these nations might be construed as a religious animus but there’s actually no other way to define those Islamic Republics as republics or at least those who claim to be republics who identify very publicly and constitutionally as Islamic.

There’s also a warning to any president of the United States in this decision even though the Trump administration won a big victory yesterday in this count. That warning is this. Presidents of the United States must be extremely careful how they speak about their actions. In this case related to President Trump, the President, as candidate and as President, had made statements that gave the occasion for people to challenge his policy, claiming that the words that he spoke, rather than the words of the policy, were at stake constitutionally. In the long term, the case yesterday is likely mostly to be remembered as a case that affirmed the constitutional responsibility of the President of the United States. The secondary effect however should well serve to remind American presidents that they must be careful with their words not only in their policies but also as they speak in public.

Part II

In 5-4 decision, Supreme Court rules that coerced speech at crisis pregnancy centers violates First Amendment

Secondly, we stay at the Supreme Court for the other major decision handed down yesterday. In any normal day, it would be leading in the media conversation. It’s not today simply because the media is even more interested in the previous decision on the travel ban, but as we look at the decision concerning crisis pregnancy centers in California, Christians need to pay very, very close attention. In another 5-4 decision handed down by the court, the court found that the so-called FACT Act in California, that’s what the legislation was named by its proponents there, the FACT Act was a violation of the First Amendment freedoms of crisis pregnancy centers in the state.

The background is that the State of California had adopted legislation that required crisis pregnancy centers in the State of California, first state, that they are not licensed medical facilities, and second, there was the requirement that crisis pregnancy centers would inform the women who came into the centers of a “full range of reproductive care.” This would include services covered by Medicaid including Medicaid-covered abortions in the State of California.

The personnel and volunteers within these crisis pregnancy centers immediately claimed, and as the court’s majority said, right claimed that the FACT Act violated their own First Amendment rights. How? By coercing pro-life personnel and volunteers within the crisis pregnancy centers to tell women how they might obtain a free tax-supported abortion when that ran directly counter to their own deepest morale and religious principles. Writing for the court’s majority, Justice Clarence Thomas said that the FACT Act, “unduly burdens protected speech. The unlicensed notice imposes a government scripted, speaker based disclosure requirement. That said, the justice is wholly disconnected from California’s informational interest.”

In a concurring opinion, Justice Anthony Kennedy pointed to the danger to free speech that is posed by any kind of authoritarian regime. In this case, the State of California was acting in an authoritarian manner in coercing speech by those who work in crisis pregnancy centers in the state. In his final concluding argument, Justice Kennedy said, and I quote, “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech,” said Justice Kennedy, “secures freedom of thought and belief. This law imperils those liberties.”

Emma Green, writing for The Atlantic, write to the heart of the issue when she wrote after the decision was handed down, “The Supreme Court handed a big win to the pro-life movement on Tuesday.” It is a big win. It’s a big win that needs to be noted with specificity. In this specific action undertaken by the court yesterday, a decision by the 9th U.S. Circuit Court of Appeals in California was reversed, but the decision was also remanded. That is it was sent back to the 9th Circuit to be reconsidered. What the Supreme Court did yesterday would make it impossible for those who defended the FACT Act in California to use the same arguments again before the 9th Circuit.

It’s also very interesting to note that in adopting the FACT Act, the legislature of California, overwhelmingly liberal and Democratic, had claimed that it was doing so because the California legislature is, to use its own self-description, forward thinking. Justice Kennedy responded to that self-designation with these words, “It is forward thinking to begin by reading the First Amendment that’s ratified in 1791. If you understand the history of authoritarian government as the founders then knew it, to confirm that history since then shows how relentless authoritarian regimes are and their attempts to stifle free speech and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.”

Part III

Why pro-abortion groups completely ignored the main point argued by the Supreme Court in free speech case

Christians looking at this and thinking in worldview analysis need to note a couple of interesting twists and turns that come up with the decision handed down yesterday. For one thing, we need to look at those who are protesting the decision most vocally, and we need to look at the arguments they are using. For example, the activist group known as People for the American Way stated, “Today’s decision by the Supreme Court ensures that more women will be misled by so-called crisis pregnancy centers designed to make it harder for women to access their constitutionally protected right to access abortion.”

All you need to note there is that the main point that was argued by the majority of the Supreme Court was completely ignored by this group. The main point was about freedom of speech, but that was completely ignored by many of the pro-abortion groups who continually just come back to the issue of abortion, but abortion itself was not even central to the adjudication of this case. In another example, Dawn Laguens, executive vice president of Planned Parenthood Federation of America said, “Let’s be clear. Fake women’s health centers are deceptive and harmful to women. Nothing in this decision,” she said, “suggests otherwise. Fake women’s health centers are lying to women withholding medical information and creating barriers to healthcare. Everyone deserves to be treated with dignity and respect. Rest assured, we will continue fighting for every person’s right to access high quality care and accurate information despite this disappointing decision.”

Notice again, free speech isn’t even present. Instead, it’s all about abortion. That just gets back to that deep, perhaps deepest of cultural divides in the United States over the issue of abortion. It’s also really interesting to note the kind of language, sometimes clever, sometimes not so clever, employed in this kind of debate. You’ll notice here that Dawn Laguens of Planned Parenthood used not just once, but in the statement from Planned Parenthood repeatedly the statement fake women’s health centers. Now, of course, that hearkens back to President Trump and his expression about fake news, but you’ll notice an idea and expression or in this case, that is noticed by one side to be winning for the other side is very quickly borrowed. That’s exactly what we’re seeing in this example.

One of the most interesting and insightful responses appeared in the New York Times by Andrew R. Lewis. He’s a professor at the University of Cincinnati and the author of the new book, The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars. The headline in his opinion piece is this. In Becerra, that’s the name of the case handed down yesterday, conservative Christians win with liberal legal arguments. Well, is that true or is it false? Is it important or is it unimportant? Well, it’s true, and it’s largely important.

Lewis begins by arguing, “Conservative Christians have significantly altered the way in which they engage in many culture war issues. The most current Supreme Court term epitomizes,” he says, “this fundamental shift. More and more often, conservative Christians are pitching arguments built on liberal legal doctrines especially First Amendment precedents that emphasize broad individual rights.”

Now, Lewis makes a rather comprehensive argument in his book. It’s summarized in this article, but this is where Christians should think pretty carefully because the argument here is that conservatives won with liberal arguments, and that this is a pattern not just related to this case but more likely to continue. Is that true or is it false? It’s largely true. The question then becomes, why? Why would this be the case? This is very interesting. The most important reason, that there has been the shift and arguments made by conservatives in general, but specifically by Christian conservatives is because in so many situations today, conservative Christians are using arguments that were made by cultural minorities in times past.

Why would those arguments made then? It’s because in that position of being a minority, arguments over freedom of speech, freedom of assembly, and the kinds of freedoms that are in our constitution become extremely important. It’s sometimes summarized as it is in this article by the assertion of individual rights. This takes me back to the fact that the Planned Parenthood official was borrowing language from, of all people, President Trump. One of the patterns we need to watch is the fact that newer movements may borrow the arguments of older movements. Specifically right now, the pro-life movement is borrowing some of the arguments and even some of the language of the Civil Rights Movement. About this, there should actually be no embarrassment because at the most fundamental level, there is no more important civil right than the right to live.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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