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Thursday, March 21, 2019

Thursday, March 21, 2019

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

It's Thursday, March 21, 2019. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

Clarence Thomas back in the news: constitutional interpretation, precedent, the importance of understanding and applying the original meaning of a text.

When you look at the Supreme Court of the United States, the nine Justices in action in the public sessions of the court, the most important of which, arguably, would be the oral arguments of the court, there is one Justice who is a standout, not because he has so many questions but so few. Clarence Thomas broke his silence in asking questions in 2016, a silence of almost a decade. Since then, he has asked very few questions. But he asked a question Wednesday in the oral arguments before the Supreme Court in a case concerning the role of race in the choosing of jurors for criminal jury panels. But the issue that caught the attention of so many is that Justice Thomas asked his first questions since 2016.

Adam Liptak, a veteran observer of the court, wrote in an article in this mornings edition of the New York Times, "Justice Thomas holds the modern record for silence on the bench. Before his questions in 2016, he had gone nearly a decade without asking one. His explanations have varied but he has said lately that other Justices ask so many questions that they were rude to the lawyers before them."

The Supreme Court of the United States is the highest court in the land. It is by definition and by constitution an appellate court. Almost all of the cases that will come before the Supreme Court of the United States have been previously considered by lower courts. They come to the Supreme Court on appeal. The Supreme Court then hears the cases and in almost all of its cases, there are oral arguments. That means that both sides get to present an argument in person, in court, in the high formality, even the regality of the United States Supreme Court sitting in session.

After the lawyers on both sides of the case have made their arguments, the Justices of the Supreme Court ask questions, but they don't have to wait until the lawyers are finished. Sometimes they interrupt the lawyers right in the midst of making their arguments. At times the questions are revelatory. They tell us something that is truly indicative about how a Justice is eventually going to rule on the case. Sometimes they are not indicative, they are merely interrogatory. They are questions that don't indicate which way the Justices will eventually decide, but they are always interesting and the observers of the court, either in person or hearing the audio of the oral audience, they are often quick to try to predict which way the court is going to rule because of the questions that were asked.

And that's the sense in which Justice Thomas has always been something of an enigma. But not really an enigma because Justice Thomas is arguably the most predictably conservative Justice of the nine Justices of the US Supreme Court. That's really saying something, and it's saying something over time. Justice Thomas is the quintessence of a strict constructionist. It was even more famously associated with his late colleague, Antonin Scalia, with whom he decided cases on the same side most of the time. But in classic strict constructionist form, Clarence Thomas may be the greatest practitioner of the art. He really does believe that the text of the Constitution, the words and the grammar, are the issue.

The proper reading and interpretation of the Constitution in statutory law is the courts responsibility. Clarence Thomas really does believe, and in this I believe he is exactly right, that the liberal or progressivist School of Law that says that it is the reading of the Constitution as what should be there in a so-called living Constitution, a constitutional interpretation that's no longer bound to the words, the syntax and the grammar, but is instead based upon modern sociology or liberal outcomes. I think Justice Thomas is exactly right, that that is not the interpretation of the Constitution, it is the contortion of the Constitution to whatever might be the desired political ends at any given moment.

That means Justice Thomas is not very popular with the intellectual elites. It means that of all the Justices, he is probably the most despised by the left. And that's reflected in the fact that he does not play the game the way observers of the court want him to play it. They want him to speak. His silence, however, is a matter of his own decision. You might say it is his own judicial style on the United States Supreme Court. What does it mean that Justice Thomas asked a question in the case yesterday? It might mean absolutely nothing. At one point, Justice Thomas said that was his practice to ask questions only when he believed it was necessary. He said other Justices were being rude in peppering or interrupting attorneys with questions in the midst of making their arguments. He has also said that he has been concerned sometimes when lawyers end their argument before they run out of time. Sometimes as a matter of etiquette or courtesy, Justice Thomas said he has asked a question because the attorney has run out of argument.

But the headline news about Justice Thomas breaking his three year silence after a nearly ten year silence is not really the biggest issue. The biggest issue is reflected in another article also by Adam Liptak at the New York Times that gets to far deeper issues. It ran earlier this month. The headline, "Precedent, Meet Clarence Thomas. You May Not Get Along." As Liptak wrote, "Justice Clarence Thomas was busy in February. As usual, he asked no questions during Supreme Court arguments, but he made up for his silence," says Liptak, "with three opinions in eight days that took issue with some of the court's most prominent precedents."

In an opinion handed down February the 19th, Justice Thomas raised suspicions about the constitutionality of New York Times v. Sullivan. That's a 1964 decision. That, as Liptak said, provided the press with broad First Amendment protections against libel suits brought by public officials. The case is so famous, it is simply known as the Sullivan decision. Justice Thomas wrote that "the decision was policy driven. It was masquerading as constitutional law." That's a very strong statement. The very next day, that would be February the 20th of this year, he criticized the case that legalized abortion on demand in the United States, Roe v. Wade. He was arguing that the case was, in his words, "notoriously incorrect," and as Liptak summarizes, "the product of misguided efforts to identify and protect fundamental rights under the due process clause of the 14th Amendment."

As week after that, he raised suspicion about the decision made in 1963 by the court known as Gideon v. Wainwright. As Liptak wrote, "that decision said the at Sixth Amendment requires the government to provide lawyers to poor people accused of serious crimes." Again, Liptak tells us that "Thomas wrote that the Sixth Amendment as understood by those who drafted and ratified it guaranteed only the right to hire a lawyer." Now at this point, the readers of the New York Times article are supposed to be scandalized. Scandalized that a sitting Justice of the United States Supreme Court would raise questions about the legality, the constitutionality, the legitimacy of three landmark decisions of the United States Supreme Court, all three of them greatly prized by the cultural left in the United States. Liptak then gets to the issue when he writes, "The opinions underscored two distinctive aspects of Justice Thomas's jurisprudence. He tries to unearth the original meaning of the Constitution and he has no use for precedents that have veered from that original understanding."

Now what does that really mean? It means that the New York Times says, the problem with Justice Thomas is that he actually means what he says, he says what he means, he operates according to his convictions concerning the Constitution. He believes that the Constitution should be interpreted solely within the context of its words and its text, its original meaning and he believes that when the Supreme Court has veered from that method of interpreting the Constitution, it has done so illegitimately. The legal principle of upholding precedence, it has a long history at the US Supreme Court, is known as stare decisis. In Latin that means to stand by things decided. Justice Thomas, this article indicates, doesn't much believe in precedent. He doesn't give much authority to stare decisis. The argument is that he should. The implication is that he's dangerous as a Justice on the United States Supreme Court because he dares to ask about the legitimacy of cases that have served massive precedential value in the United States.

Now, as you're looking at this question, Christians need to understand that on both sides of the political equation, stare decisis has been considered very important. To let the decision stand. The things decided should be allowed to stand as they are. Both liberals and conservatives will site precedence when it is important to their argument. Both liberals and conservatives understand that the dignity and the credibility of the nations highest court would be at stake if it would turn out to be erratic in its decisions, going here and then there and then some other place. There is a continuity that is required by the stability of government and the reputation of the court.

But here we see a key issue at stake, that has meaning not only for the United States Supreme Court, and not only about the interpretation of the Constitution, and has a great deal to do with even what we understand to be the responsibility of reading the Bible, how we are rightly to interpret and read the Bible. The question is, are we to see in the Bible a living document that doesn't necessarily mean what the words say? Is our interpretation of scripture to be freed from the actual words and grammar and syntax from the language itself? Or are we bound to the very words of the text?

This is a basic divide in conservative versus liberal theology. Especially when you look at Protestantism, you're looking at the fact that liberal Protestants long ago began to make the argument that we have to read the Bible critically. By critically they mean, deciding how it is that we are to get around passages that we don't like by declaring them to be non-historical or non-inspired or of less importance than other text. Or furthermore, never representative of what God really meant to say. Conservatives holding to a classical church doctrine of scripture understand that every word of scripture is inspired as the scripture says itself. Every word is fully inspired. This is the verbal plenary understanding of the inspiration of scripture. This is a fundamental divide.

If you believe that the Bible is the word of God, then you have to deal with it as the word of God. If you believe that the Bible is some kind of human witness to a divine reality then you can decide to evolve beyond it, you can correct it, you can go around it. But when it comes to interpretation, again the issue is, do you have to deal with the words? Are you limited to the grammar? Does the syntax matter? Is it a text that is meant to be read in light of its original intention, the intention of its author?

One of the issues for us to understand is that there's a parallelism between liberal interpretations of the Constitution and liberal interpretations of scripture. It's not by accident. There's a parallelism between conservative interpretations of scripture and conservative readings of the United States Constitution. Justice Thomas is really hated by the left because he is perhaps the most consistent conservative interpreter of the Constitution currently serving on the United States Supreme Court.

Now Christians must understand there's a crucial distinction between the authority of the US Constitution and the authority of scripture. We don't believe that the scripture can be amended. We don't believe that there is a proper way to change the scripture. We actually do believe that there's a proper way to change to Constitution of the United States. If we mean to say something different now from what the founders and framers of the Constitution meant and said then, then there's a process right in the Constitution for amending it. The wrong way to try to change the Constitution is simply to use the authority of the court to go around the words, to go around the text.

To declare it to be a living Constitution, the Justice is no longer bound by the words. But this article that appeared just earlier this month in the New York Times really points to Justice Clarence Thomas saying that he doesn't have adequate respect for precedence. But then it really does make his point in trying to describe his position. Let me go back to it, "The opinions underscored two distinctive aspects of Justice Thomas's jurisprudence. He tries to unearth the original meaning of the Constitution and he has no use for precedents that have veered from that original understanding."

Do you understand what he's being accused of here? He's being accused of privileging the text of the Constitution over the text of even Supreme Court decisions that he thinks veers from the Constitution. Once again, he's actually found guilty of being consistent with his understanding of how the Constitution is to be read and interpreted and applied. I think he's absolutely right to say that the progressivist understand of the Constitution, in which new rights are invented, new meaning is imported into the Constitution, it's illegitimate and at least he has the courage to say that precedents based upon that illegitimate method of interpreting the Constitution are themselves illegitimate.

Now that doesn't mean, by the way, and here's the final point on this, that doesn't mean that he wants the law, the reality, to be different than those Supreme Court decisions have indicated. He doesn't make that point here. Now in the question of abortion, it's very clear that that would be true. He thinks that the case is not only wrongly decided, but is wrong. But here's what's really interesting. Justice Thomas in effect, is saying to the nation, if you want a different Constitution then amend the Constitution. Write a new amendment. Write new language of the Constitution, to which the people of the United States and the United States Supreme Court would be bound. But don't just try to make the Constitution say what it clearly doesn't say. Don't invent new rights out of thin air. Even if you want to get to the right place, don't get there by the wrong method.

And once again on a story like this, we find out that matters related to the law are never limited to the law. They point to far larger realities which should interest all Christians.

Part

Do bad people deserve good lawyers? The political left is marching onward, leaving Ronald Sullivan behind: How the Harvard Law School professor became the latest focus of moral outrage

That's why next we're going to turn to a story as reported in The New Yorker by Isaac Chotiner. "Ronald S. Sullivan, Jr., a clinical professor at Harvard Law School, is among the most high-profile criminal-defense lawyers in the country." He continues, "Sullivan represented Aaron Hernandez in his acquittal for a double homicide and helped the family of Michael Brown reach a $1.5-million wrongful-death settlement with the city of Ferguson, Missouri. Sullivan has also devoted much of his career to representing less-privileged defendants: he is the director of the Criminal Justice Institute at Harvard Law School. He previously served as the director of the Washington, D.C., Public Defender Service. In the wake of Hurricane Katrina," we are told, "he helped free thousands of Louisianans who had been incarcerated without due process."

Then the story gets even more interesting. I continue reading, "Sullivan is also the first African-American faculty dean at Harvard, and this position, combined with his latest case, has landed him in an escalating controversy. In January, Harvey Weinstein announced that Sullivan had joined his defense team. Some students at Harvard revolted in anger, protesting Sullivan’s decision and signing an online petition saying he should resign as the faculty dean of Winthrop House. In response, Sullivan wrote an e-mail to Winthrop residents," that would be Harvard undergraduates, "describing the importance of representing 'unpopular defendants'; he went on to appoint a new point person in the residential college for conversations about sexual assault. This," says the New Yorker, "did little to quell students’ concerns, and recently Harvard College announced that it would conduct a 'climate review' of Winthrop House, which could lead to administrative action."

This really is a huge story. You're talking about a man who was the first African-American faculty dean at Harvard. A man who has been famous, celebrated on the left, for his defense of unpopular defendants. He has been someone who has been well-known as being, according to the left, the defender of the defenseless, and yet now, when he takes an unpopular defendant becomes a part of the defense team for Harvey Weinstein, he is accused of having violated his responsibility as a faculty dean at Harvard College. Students in the college are saying that he has made them feel unsafe and that he should resign his position.

But notice the argument these students are making. They are saying that it is morally wrong for a criminal defense lawyer to take on an unpopular defendant. In this case, it's hard to come up with a more unpopular defendant than Harvey Weinstein, famously accused and now facing criminal charges related to the Me Too controversy and repeated accusations, indeed credible accusations, of sexual assault and worse. You are talking about an extremely unpopular person. But one of the key commitments of the United States of America in our legal system, and one of the key demands of the cultural left, of liberals in this culture, has been for an adequate defense for all criminal defendants. And whether he's unpopular or not, and he's deservedly unpopular, Harvey Weinstein deserves the very best defense team he can find.

It should be of historic interest to us that this is not a new controversy for Harvard, nor for a Harvard alumnus. It was in 1770 that British soldiers, who had opened fire on Bostonians killing five, were, as Conor Friedersdorf in the Atlantic tells us, "among the most reviled men in the 13 colonies." Then Friedersdorf writes, "Harvard alumnus John Adams, a patriot with aspirations for political office agreed to defend them at trial." These were British soldiers who had killed Americans. He decided to defend them, "even though he knew that he was risking not only his reputation but the safety of his family, because aggrieved Bostonians felt that their safety was implicated."

Friedersdorf later writes, "Though he went on to sign the Declaration of Independence, and serve as vice president and president of the United States, he counted bolstering the principle that even people accused of heinous crimes deserve a vigorous defense as 'one of the most generous, gallant, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.'"

So thus even before the United States of America was the United States of America, this was a society committed to the fact that criminal defendants deserve a vigorous and expert defense. It's also interesting to note that one of the precedents that was raised in the question of Justice Thomas, the Gideon case, has to do with the very fact that poor criminal defendants are, according the the United States Supreme Court, owed a defense even paid for by the American taxpayer. But it's also very interesting, when you think about the brittle condition of the left especially on college campuses and the leftward tilt especially of students on these elite campuses, it's really interesting to note that they have gone at this Harvard faculty dean saying that he has destroyed his role on the Harvard campus by doing what Harvard has, for centuries, represented as that which should be done.

But now on the other side of this Me Too controversy, Harvard students are saying that it has created an unsafe environment for them, that their dean has taken on this notorious defendant. But as so many in the major media and at least 50 major law professors in the United States have indicated, this is a violation of the very constitutional principles that have governed the United States. This is a violation of what liberals have demanded for decades, indeed for well over a century. This is the repudiation of the left by the new left, and the new left is still marching left. And it also points to the fact that students are now using identity politics in order to describe safe and unsafe actions, safe and unsafe people. And in this case, they're pointing to a faculty dean at Harvard, saying that he has made the situation unsafe. It doesn't mean that they're accusing the dean of making them feel physically unsafe, it's mostly about feelings, and that really turns out to be the point.

Heather Mac Donald in an opinion piece for the Wall Street Journal this week wrote, "This student agitation could have been an opportunity for a lesson in the values of Western democracy. Harvard's administrators could have explained that a lawyer who defends someone accused of a crime doesn't thereby condone crime. Rather he is upholding the principle that all defendants, even guilty ones, have a right to legal representation and that the state may criminally punish someone only after proving his guilt in a rigorously contested adversarial process."

But Mac Donald's point is that that is what Harvard could have done, that is not what Harvard did. Instead Harvard has basically caved to the student pressure and has now begun an investigation of this dean. A dean doing what criminal defense lawyers are supposed to do, and what is taught at the Harvard Law School as what defense attorneys are supposed to do. And what is taught at Harvard College in the history of the United States as what a constitutional government should insist should be done. By every account, Harvey Weinstein is one of the most reprehensible human beings to cross the American imagination in a very long time. The accusations against him are many and they are credible. His conviction in a criminal case would make that point emphatically clear, but it is only legitimate if it is indeed a legitimate trial, and that means that he has the right to an adequate legal representation. It should alarm us all that on the left right now, we see a rush, not to justice but rather to judgment, with justice taking a backseat to immediate moral judgment.

Part

Is social media really social? A new study reveals a correlation between teen loneliness and social media engagement

Finally, as we're thinking about signs of the times, a headline from yesterdays edition of USA Today, the article is by Jayne O'Donnell, the headline, "Teens aren't socializing in the real world. And that's making them super lonely." Again we have evidence of the impact of social media upon all Americans but with a particularly acute impact amongst the young. O'Donnell writes, "Teens whose face time with friends is mostly on their phones are the loneliest of all, but even those who mix real-world socializing with social media still are increasingly isolated," this according to a report that was released yesterday.

San Diego State University psychology professor Jean Twenge in the report tells us that loneliness isn't just an age thing, it's generational. The percentage of high school seniors who said they often feel lonely increased from 26% in 2012 to 39% in 2017. Let's just look at the math, that's five years, an increase between 26% and 39% of high school seniors who said they often feel lonely. Now what should alarm us more than anything else here is not just the increase of more than double digits, as you're thinking about the number of high school seniors who often feel lonely in the digital age, it's the fact that high school seniors are expected to be emotionally in a better place than younger teenagers, particularly middle schoolers and even younger high school students. If this is true of seniors in high school, what must it say about their younger siblings, their younger brothers and sisters and cousins and friends? There must be an even greater vulnerability as this report makes clear.

But as we bring our thoughts to a close today, we just need to consider perhaps the fact that the term social media has been misleading all along. Maybe it turns out, social media is not so socially real. And it's also interesting here that we are told that teenagers who actually spend face time with friends who mix real world socializing with social media, still feel increasingly isolated. And those teenagers whose main social interaction is by means of social media, they are the most isolated of all. It was very interesting to look at accumulated research over the last several years and recognize that there is a direct correlation between the number of hours teenagers and young adults spend on social media, with their smart phones especially in their hands, and the rate in which they reported themselves to be unhappy. Unhappiness increased as the use of digital media increased.

It's also important to recognize that at the very same time this research is coming out, parallel research is indicating that loneliness is rightly to be understood not merely as a psychological, psychiatric, social or psychosocial reality, it is even a physical reality. Loneliness increases the death rate. It lowers life expectancy. It is tied to any number of physical maladies that can even turn deadly. At the very least Christians have to look at the situation honestly and with deeper concern than the secular world. We at least ought to be those who understand that maybe, just maybe, the term social media is inherently misleading. And maybe right now Christians need to understand honestly that the social media revolution was never merely a technological revolution. It was also a moral revolution, and that's a fact we dare not miss.

Thanks for listening to The Briefing.

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I'll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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