The Briefing

Additional Reading

Part

Michael J. Gerhardt

Super Precedent, by Minnesota Law Review

New York Times

So, Do You Believe in 'Superprecedent'?, by Jeffrey Rosen

Part

Thursday, September 6, 2018

Thursday, Sept 6, 2018

Tags: Audio, Brett Kavanaugh, Education, Law, Summer Break, Supreme Court

Transcript

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

It's Thursday, September 6, 2018, I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

Why the divide is much deeper than liberal and conservative when it comes to interpreting the law

The chattering classes especially in Washington, D.C. are now doing what the chattering classes do; they're chattering, mostly about the latest headline that becomes the fascination of mainstream media. Those issues are not unimportant but what is most important from a Christian worldview perspective right now this week in Washington, D.C., that would be the confirmation hearings for the next justice of the United States Supreme Court. And of course, this takes us back to the 9th of July, when President Donald Trump announced his choice of Judge Brett Kavanaugh, currently a judge of the Court of Appeals for the District of Columbia Circuit.

As we have mentioned before, that court more than any other court, has become something of a finishing school for those who will sit on the nation's highest court; the Supreme Court. That's exactly what is taking place now, and in Washington, D.C. beginning on Tuesday, the confirmation hearings have begun and for the most part they have followed a familiar pattern. The pattern comes down to the partisan divide in the United States, any nominee from a Republican president, is going to meet with decided democratic opposition and any nominee from a Democratic president is now going to be met with a decided Republican opposition. That's not because the issues have never been stuck as they have arrived before the court, it is because the issues have never before been so partisan, but they are now, and yet these hearings are not unimportant.

This is where Christians have to understand, there is more at stake here from a Christian worldview than what might be described as the secular or merely political imagination or concern. So what are we talking about here? Well, just think about the Old Testament and the fact that the Old Testament reveals God's plan and purpose for Israel with those who will bear the title of judge. If you're thinking about judging and if you're thinking about the law, this takes us back to the most basic law of all, all revealed law which, is the Ten Commandments, the Decalogue. And thus, a biblical worldview reminds us that there is a law that is written on the human heart, there is a law that God has revealed to all of creation, but there is also a law that he revealed. And a part of what is revealed in this pattern is that God made us not only as moral creatures, but as creatures who yearn for a law and not only for the law, but for the right kind of law.

When you translate that into the culture into society, well, this explains why Christians have always had such a close relationship with the law, such great interest and investment in the law, in the courts, in judges. This is why if you go back to the medieval centuries and the origin of the university, we remind ourselves deeply rooted in a comprehensive Christian worldview, it was the unity of all the knowledge that revealed why for example, the Faculty of Theology and the Faculty of Law in those ancient universities, had so much in common, and there was so much cross-fertilization. It is because in both cases you're dealing with ultimate questions of what is right and what is wrong, what is true and what is false, how human beings should be organized, whether or not, there is a rightful authority, and here's the rub, how one should interpret a text.

And that's the debate between the liberals or progressives among legal scholars and judges, and especially as many of them are now committed to what is known as Critical Legal Theory, are contrasted with those who are originalists or strict constructionists or textualists. This is not merely a liberal versus conservative divide, it is something even more basic than that. It's not less than liberal versus conservative, but it's more, the issues are deeper. The question is, how does one, or aren't one to read a text? And the reading process has great similarity. Whether you're talking about the reading of the U.S. Constitution and American statutory law, or the reading of the Bible in the Old and New Testament. The act of reading and interpreting the text is incredibly parallel in both cases, which is why liberal legal scholars and liberal theologians share in common a way of looking at the text, whether it be the Constitution or the Bible.

And again, more conservative scholars also share a basic similarity of understanding how we are to read a text, whether it is the constitution or it is the Bible. Those on the more conservative side hold to a textualism, that is to say the truth resides in the text. The text is a matter of language, letters, sentences, it is a matter of propositional statements with an intention that is reflected by the author at the time. Those who hold to a more liberal understanding suggest that the text really is a pointer to a more fundamental living reality, thus references made to the text, but the ultimate meaning and the ultimate authority is shifted from the text to the interpreters. And that means in our context, that the authority shifts quite subtly from the text to the judge, from the text to the court. But if you were listening carefully to what was taking place in the hearings yesterday, even as many people in the national media will tell you, there really wasn't much revealed. If you're thinking in worldview analysis a very, very great deal was actually revealed.

Revealed for example, in a conversation most importantly about abortion, especially those on the Democratic side absolutely committed to protecting the Supreme Court decision of 1973 known as Roe v. Wade, they continually spoke either at or over the nominee in order to argue that if he were to sit on the court, roe would be endangered. So in the hearings yesterday Judge Kavanaugh entered into a repeated conversation, now, a very predictable conversation with Democratic senators. Their purpose was to try to speak over the nominee in order to try to scare the American people that this man represents a threat to Roe v. Wade. On the other hand, Judge Kavanaugh entered into a conversation in which he was repeatedly asked not just about Roe v. Wade, but about whether or not, Roe v. Wade was to be respected as a precedent.

Part

Precedent, super-precedent, and settled law: Understanding the code language behind the effort to protect abortion rights

So what's going on here? Well, this is where we have to understand that law like theology has a great obligation to tradition. Any generation entering into the law, enters into a conversation that's been taking place for centuries, indeed for millennia. One of the issues honored in the law is the principle of stare decisis. In the Latin that means to stand by that which has been decided, standing by decision, what does that mean? It means that in general, there is a deference of living judges to the decisions of prior courts on similar issues. But of course, that raises an interesting question, what about change? Moral change or legal change in a society? If the law of stare decisis means that a court must maintain exactly the same judgment, generation after generation, well, that clearly would indicate an insurmountable problem. So the law represented by the courts and judges, seeks a very gradual process of change that is grounded in the text of the law, from a conservative perspective and respect for the precedents that have come before, but that respect does not mean that the law as decided by the courts will never change.

Sometimes the law changes by amending the Constitution, sometimes the law changes by the adoption of new statutes, statutory law, sometimes the law changes by judicial interpretation or the application of the text either of the constitution or the statute. So what really happens? Well, in the traditional context, this means that judges will give the benefit of the doubt to how a case was decided by a previous court, especially a superior court and then rule given the contemporary context. Now, that means that the judge understands the judicial responsibility not to explain why a judicial decision would not change, but why it would. That's a different kind of responsibility. So this means that in a context like the hearings this week, when a nominee is asked about his or her view on precedent, what's really being asked is the view on Roe v. Wade. That's the code language.

In an opinion that Judge Kavanaugh wrote in a case last year, he referred to Roe v. Wade as existing precedent. Well, think about that for a moment, here, you have someone who has described Roe as important precedent and as existing precedent. This led Senator Richard Blumenthal Democrat of Connecticut to ask what he meant when he used the word existing. Senator Blumenthal was accusing him of saying it's an existing precedent until it doesn't exist anymore, and you have to admit the senators on to something there. But this issue blew up in a sense back in 2005 with the confirmation hearings of the chief justice of the United States, John Roberts. And in that case, the person asking the question, the senator was not a Democrat but a Republican but at then rather liberal pro-abortion Republican, Senator Arlen Specter.

Senator Specter turned to John Roberts and asked him if he believed that Roe v. Wade had become a super precedent, or in Specter's words a super, duper precedent. Well, if you look in a law dictionary, you're not likely to find super-precedent. You're certainly not going to find super duper precedent, but now that's a part of America's political lexicon, and it's precisely because of the question that was posed to the now, Chief Justice of the United States, John Roberts. Roberts responded that he saw Roe v. Wade as a precedent, but he didn't bite the apple of saying that he saw Roe as a super, duper precedent. So what's going on here? Well, just a few weeks ago, a Republican senator, one of the two women Republicans who is more defensive of abortion rights, that's Senator Susan Collins of Maine. She said that in her conversation with Judge Kavanaugh in her office, he had affirmed to her that Roe v. Wade is, here are the words, 'settled law'.

So now we have settled law, we have precedent, and we have super precedent or as Senator Specter called it, super duper precedent. How do we understand this? Why is this important to Christians? Well, it's important to understand that we too respect the ways that judges and courts deal with text, and also respect tradition. That's very important, we understand that there is an urgent necessity of respecting that tradition, otherwise, the courts just become hyper-political and the law becomes what any judge on any court, any date says that it is. But this is where Christians also understand that given that respect, there is not so much respect that we believe that a judge or a court always rules rightly all the way to the Supreme Court of the United States. For example, we would believe that the Roe v. Wade decision was not only wrongly decided, but tragically, murderously so.

So you would look at the Roe v. Wade decision and you have to understand that those who now defend it, are defending it not merely as the standing decision of the United States Supreme Court, but as a precedent, and not just a precedent, but as settled law. Meaning, the court is not to return to that fundamental question. That's what's being signaled there, and even a super precedent or a super duper precedent. At this political moment, it's important that we recognize that those who are arguing for these super precedents, they generally reflect an argument coming from the left, from the more liberal direction, very intent on protecting what they see as the judicial gains of the 1960s 70s and 80s. An example would be Michael J. Gerhardt, who is the Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina at Chapel Hill School of Law.

In an article he wrote entitled, Super Precedent, he defines a super precedent this way, "Thus, super precedents take on a special status in constitutional law as landmark opinions, so encrusted and deeply embedded in constitutional law that they have become practically immune to reconsideration and reversal." Now, you see what's at stake, if indeed there would be the recognition that Roe v. Wade is not only a precedent, unquestionably to that, but a super precedent in the words of Professor Gerhardt, so encrusted and deeply embedded in constitutional law that Roe will have become "Practically immune to reconsideration and reversal." Well, there you see that the Liberal gains in the courts of the 60s, 70s and 80s, will become so protected that no future court or future judge would dare go back and revisit the questions.

Back in 2005, when this language first emerged in those confirmation hearings for Chief Justice John Roberts, Jeffrey Rosen, writing for The New York Times, a veteran observer of the court wrote, "The Theory of super precedents is still so new that it has not been thoroughly debated, but since the Roberts hearings, prominent liberal academics have seized on the idea as their best chance in a generation for countering the claim of conservative strict constructionist that any precedent should be overturned if it is inconsistent with the original understanding of the Constitution." In that, Rosen gets the situation exactly right. Those who are now seizing upon the idea of the super precedent are saying that decisions such as Roe v. Wade are actually now more important than the text of the Constitution itself.

Now, we understand what's really at stake, at stake in the kind of language that is used in the hearings in which we were told that so little was revealed. But a great deal indeed is revealed when you hear words like, settled law, precedent and super precedent. Whether you accept that argument or not, has a great deal to do with eventually whether or not, a decision like Roe v. Wade is understood as being untouchable, even more important than the U.S. Constitution. This is also where Christians understand that at every single level of a question of this importance, we have a deep and abiding, indeed unavoidable interest.

Part

Should we eliminate summer break? Why such an effort will struggle to gain any political traction

But next, Americans have just celebrated the Labor Day weekend and through most of the United States, through most of the last several decades, that has meant the official end of summer and the beginning of the fall term, back to school.

Now these days, many schools are starting earlier, some of them much earlier, but the reality is that there is still a familiar pattern to this school year in the United States. And furthermore, it turns out that the pattern to the school year is not just American, it is shared with many European nations as well, wherever American or British influence was likely to be found. That means a fall term, and it means a spring term and then it means summer as distinct from the school year. Now, in the United States, the school year, especially in the public schools, comes down to about 180 days. Now, you can do the math and recognize that given the weekdays, that will comprise a majority of the year, but it leaves a significant gap in the summer. But that's now contested terrain, it's interesting to note that on both sides of the Atlantic, there are now renewed calls to eliminate summer vacation.

But before dismissing these as having no chance of gaining any traction, we need to understand why the argument arises as it does, and why there is a new dimension to this argument that just might gain a great deal of attention. So why the original concern about summer vacation? It comes from educators in particular, the original concern was that there is a loss of knowledge. There is a summer break which means a summer loss, students who are right up to date with their multiplication tables and their vocabulary and their pre-algebra, they do so well in the spring, but then there has to be a remedial period of catch up in the fall. So the argument is we need to keep those kids in school year round so that there is no summer lost. There is no period of time away from school so lengthy, that there would be a measurable loss in the kind of knowledge that is measured by so many school districts and so many disciplines.

But then you have to understand another argument has arisen, that argument is more recent, not the most recent, but more recent, and that argument is that kids should be in school more of the school year because so many parents including both mother and father, and especially where you find single parents, they're in the workforce and it represents a great difficulty trying to decide what to do with the kids during the summer break when mom or dad, or mom and dad must work. So that's been a more recent concern, but then there has arisen a brand new issue, which is being argued by many who are trying to make the case that summer break should be a thing of the past and not in the future, and this is economic inequality. Now, how does that play out here? Well, it has to do with the fact that parents of greater economic means are able to limit the knowledge loss of their own children by engaging their children in educational activities or cultural experiences over the summer that retain more of the knowledge and lead to even greater educational opportunities.

So the argument goes that allowing summer break is actually adding to economic inequality. So you put all those arguments together, well, it's really interesting, the Economist of London, just in recent days, ran an editorial "Down With Summer Holidays, and the subtitle was, Long breaks are bad for children and for social mobility, and then a lengthy essay inside the magazine entitled, Schools Out, here's the subhead, Most country schools have lengthy summer holidays, but experts say they have problematic and unequal effects." This British magazine cited Matthew Boulay of the National Summer Learning Association, that's an American organization by the way, who said, "Summer is the most unequal time of the year." The Economist summarizes, "Well-off parents can fill the gap left by school, keeping their children stimulated with summer camps, trips abroad or private tuition, but poorer families obviously find this harder."

In the editorial The Economist laments, "Many children will return from the long break having forgotten much of what they were taught the previous year." They go on to say that, "One study from America found that this summer learning loss could be as high as a quarter of the year's education." But then back in the United States the Washington Post ran a similar article just a few days ago, it's by Kenneth gold, it's entitled, The Myth Behind Summer Break, the subhead, And The Challenge it Creates for School Reformers. Gold goes on to write, "The return of school renews debate about how long the school year should be and how standardized it should be across regions." Gold who's Dean of the school of education at the College of Staten Island at the City University of New York, tells us that there is an error in the way most people think summer break came about. According to Gold, most people think it came a because of a farm schedule when children were needed at home in the summer in order to care for crops, both the harvesting and the planting of crops, when you're looking at the spring harvest and the fall harvest.

But Gold says that's not really true, it really emerged more in urban districts and it emerged from a couple of different impulses. One of them was just cost savings, it costs too much to keep the schools going year round. But then there was something else, and that something else had to do with that great 19th century urgency to get people out of the cities and out into the country during the summer to improve their health and expand their consciousness. This was a part of the Muscular Christianity movement of the late 19th and early 20th centuries and it explains why there are so many Christian camps that are so populated during the summer. Every major denomination built these camps, the Southern Baptist Convention had assemblies such as Ridgecrest and Glorietta. The United Methodist in the South had Lake Juneau Alaska, the Presbyterians Montreat and the idea was exactly the same, all of those by the way, at least Ridgecrest, and Montreat, and Lake Juneau Alaska in the Smoky Mountains.

Gold hopefully reminds us that some educators back in the 19th century believed that children might be overtaxed, their brains might be over exerted by keeping them in school year round. The argument was they will actually be better learners in the fall if they have a summer break in the middle of the year. But just when you think that Gold might be arguing for the elimination of summer break, his article changes a bit and I "But the cultural hurdle might actually be reformer's biggest challenge, 120 years of summer vacation have encouraged rich and poor, white and people of color, all to participate in activities centered on summer vacation and warm weather, 4th of July fireworks, baseball games, outdoor concerts, amusement parks, summer camps and camping, barbecues, hours by the pool, days at the beach, weekends at the shore, and months abroad." He concludes, "Increasing summer school may be a good educational policy for raising standardized test scores or increasing graduation rates, but is it good social policy to tamper with the season during which many families and friends forged their most enduring bonds and memories, and where students get a break from the stresses and pressures of schooling?"

He concludes, "Summer learning opportunities should be abundant for all children, but they need not look and feel so much like school." I think as he ends the article, Professor Gold is exactly right and that historical reference he makes is also not unimportant. There is a sense in which the Christian worldview affirms not so much exactly how the school year should be scheduled, but the fact that family is more fundamental than school and the fact that parents and children together during those formative experiences of summer, are actually achieving something more important than anything that can be measured on a standardized test. I'll go ahead and go out on a limb on this one and say I don't think there will be any successful effort to eliminate summer break entirely. That takes me back to the fourth grade when I was sitting in the cafeteria of the Medulla Elementary School in Lakeland Florida. This was during the 1968 presidential campaign which featured Hubert Humphrey, the Democratic nominee and Richard Nixon, the Republican nominee and George Wallace, the Alabama governor running as an independent.

George Wallace had just spoken at a campaign appearance in central Florida, and wrongly, it turned out word filtered down to the nine year olds in the fourth grade at Medulla elementary school that if George Wallace were elected president, he would make us go to school on Saturday. Now, needless to say, there were great issues at stake in the potential election of anyone like George Wallace as president of the United States and going to school on Saturday with neither his plan nor the greatest threat of George Wallace. But I can assure you that Wallace lost the vote of the nine year olds in that school cafeteria in 1968, even with the threat of having to go to school on Saturday and similarly, I think that any proposal to eliminate summer break is going to meet with just about the same political response. But this is where Christians understand that this argument about summer break is actually a much larger more significant argument than may first appear. And why is that? It is because the ever encroaching state will always want more of the time of our children nevertheless.

It is because parents in this society have to fight for and preserve every opportunity for family experience with their own children and grandchildren. It is because Christians understand that education is fundamentally important because God made us to learn and assigned us to teach, but it's also Christians who understand that even though school is important, it is never ultimate. But then again, we're now on the other side of Labor Day and the school term has now begun. So let's get busy.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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