The Briefing

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Wall Street Journal

Thomas and Breyer’s ‘Stare’ Contest, by Myron Magnet

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Wednesday, June 12, 2019

Wednesday, June 12, 2019

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The Outsized Power of the Supreme Court: Looking Toward the Upcoming Flurry of Supreme Court Decisions

As Americans should know, there are three branches to our federal government: the Legislative Branch, which is Congress, the Executive Branch, headed by the president and then the entire administrative structure of the Executive Office, and then thirdly, the Judiciary—especially the Supreme Court of the United States. But when we say the Judiciary, we actually refer to the entirety of the federal courts. Most importantly, however we are looking at the Supreme Court.

Over the course of American history, at least in theory, we are reminded that we are supposed to have three, co-equal branches of government; but over the course of the last several decades the Executive Branch has grown at the expense of Congress, and furthermore, at many points and on many issues it is the Judicial Branch that has often usurped the political process. The Supreme Court has an outsize importance in the nation's life to what was expected when the framers established the Constitution. It wasn't expected that the nation would wait breathlessly for decisions to be handed down by the Supreme Court.

The Supreme Court, by definition, is the most mysterious and secretive of the three branches. Much of its work is done behind closed doors in the Conference, which is the meeting of the justices together, and then in their individual chambers. You basically see glimpses here and there of the court at work, most importantly in the oral arguments that take place before the court. Even though those are open to the public and a limited number of Americans can observe them, they are not televised, because the Supreme Court has argued that televising the proceedings would change the nature of the court's work. But there are also those very important moments where the court, using its own language, hands down a decision.

Now, what we're looking at is another pattern that should have our attention. When you're looking at the court, hearing those oral arguments in the cases in which it is acknowledged review, you are looking at about 70 to 80 cases a year. The Supreme Court receives between 7,000 and 8,000 cases upon appeal, some of them automatic, some of them coming upon the decision to appeal. But the Supreme Court takes only about 70 or 80 cases a year. The math becomes very crucial because there is a very interesting pattern at work here on the calendar. The court hears cases often beginning as early as October, but it decides the majority of cases later in its term. The term ends generally about the end of the month of June. The court takes a recess during July and comes back later, in order to begin its new term.

But there's another interesting twist here. Over the course of the last several years we've also seen the fact that the court has withheld many of its most important decisions in a given year until the very last days of June, leading to an increased sense of mystery as to exactly how the court is going to rule. As of the beginning of this week, there are about 27 major cases still to be decided, decisions still to be handed down. But I have to state that carefully, because it is probably true that the vast majority of these cases have actually already been decided, but the decisions haven't been announced. “Why?” is also shrouded in the mystery of the Supreme Court. It certainly adds a sense of suspense coming to the very end of the court's term.

But sometimes we get a glimpse, an inside view of the court in public comments made by the justices. They don't make that many public comments, and when they do make those comments, they are often very important. Just days ago David G. Savage of The Los Angeles Times offered this report: "Justice Ruth Bader Ginsburg has hinted that sharp divisions will mark the final weeks of a Supreme Court term that will include major rulings on the census and partisan gerrymandering. Speaking before the Annual Conference of Federal Judges in New York, Ginsburg suggested that more than a quarter of the court's remaining 27 rulings will be decided by a single vote. Of the 43 argued cases settled thus far, 11 were by a vote of either five/four or five/three, this according to the Justice's comments. She said, 'Given the number of most watched cases still unannounced, I cannot predict that the relatively low sharp division's ratio will hold.'"

Now, that's Supreme Court speech for indicating that there are going to be an unusual number of very close decisions. There are nine justices. Very close often means five/four. That means the decision is really being made by one justice. The fifth vote could go either way.

It's also interesting to remember that Justice Ruth Bader Ginsburg is one of the most liberal members of the court. She seemed to be indicating that she would be in the minority of many of these five/four decisions as they are announced in the days remaining in June.

But even as Justice Ginsburg's comments began to reverberate throughout the media, yesterday The New York Times ran a major article by Adam Liptak with the headline, Ginsburg Gives Hints of Sharp Divisions. He wrote, "In 2012, as the Supreme Court was mulling the fate of President Barack Obama's healthcare law, Justice Ruth Bader Ginsburg addressed the American Constitution Society, a liberal group. The justice said then, in 2012, 'The term has been more than usually taxing.’” Oddly enough, that became a clue to the fact that just a few days later Americans would learn that the central issue in that decision over Obamacare would actually come down to the definition of a tax. Justice Ginsburg, talking to judges then, in 2012, was effectively speaking in code.

Liptak then wrote, "On Friday Justice Ginsburg gave a similar speech, this time at a judicial conference in New Paltz, New York. There was little in her remarks to hearten liberals. She started by noting the most fundamental change at the court. 'Justice Kennedy announced his retirement. It was, I would say, the event of greatest consequence for the current term and perhaps for many terms ahead.'" Now, Justice Ginsburg here was commenting (in fact, you could state that she was lamenting the fact) that Justice Kennedy, a so-called swing vote, who had been appointed as a conservative, but on many issues, especially social issues, like abortion and same sex marriage, turned out to side with the liberals. She was lamenting his retirement and the fact that he was replaced by a very clear conservative, Justice Brett M. Kavanaugh.

Liptak picks up again, "Justice Ginsburg's concluding comment seemed to foreshadow a closely divided case, in which she will be on the losing side." That was in particular reference to the case concerning the question of citizenship and the United State Census, but it's also really interesting to note that Justice Ginsburg spoke about another case that hasn't been handed down yet, this having to do with the constitutionality of a major Christian cross that had been established as a war memorial to the veterans of World World I. The American Humanist Association had sued, saying that the state of Maryland and the local government had violated the separation of church and state—or more technically, it violated the establishment cause by putting a Christian cross up as this monument.

Justice Ginsburg indicated in her statement to the judges last week that she does not believe that the cross is constitutional; but she also spoke in a sense that seemed to indicate that her statements would show up in the final decision as a dissent, that is from the voice of the minority. I can only say that for the cause of religious liberty we have to hope that that is the case.

One of the things we need to note here as Christians as we seek to analyze what we're being presented with here is the fact that the Supreme Court has an outsize significance precisely because it has taken upon itself to settle many of the most contentious and controversial questions of American policy, including the question of abortion, as in the Roe V. Wade decision of 1973; as in the question of same sex marriage, as in the Obergefell decision of 2015.

The point here to be made is that Congress was intended by the framers to be the essential policy making branch of government. That is the very issue of legislation. Congress is to propose and then to pass bills that will be then presented to the president of the United States for signature to be signed into law. The Supreme Court was intended by our framers as the third essential branch of government to be the last branch to be involved in such an issue. But the Supreme Court has taken on this issue at least in part because Congress has not had the political will or the political courage to deal with these issues.

And to state the matter bluntly and clearly, in a liberal, progressive age a liberal and progressive court has determined on its on initiative to take up many of these questions, precisely because it wanted to establish American policy by will of the judiciary in a liberal manner that would not have been possible through legislation. In other words, such policy would never have passed Congress, but instead the courts took it up. This is what's referred to as the judicial usurpation of politics. This wasn't the founders' or the framers' plan, but it is where we are right now. One of the things you hear in the national conversation is that those, especially in the liberal and progressive side, who had begun to count on the Supreme Court ruling in their favor on these questions, the very fact that we now have what might be well described as a bare, conservative majority on the case has led to incredible frustration on the left, just as Ruth Bader Ginsburg one of the most frustrated.

But there is an even deeper issue here for Christians to understand, and that has to do with the role and rule of the Constitution—how the Constitution as a written document is to be read, and interpreted, and applied.

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Is the Constitution a Living Document? How Precedent and Constitutional Interpretation Influence the Proceedings of the Supreme Court

This leads us to a very different article. This one appeared just in recent days in the Wall Street Journal. It's by Myron Magnet, who is editor at large of the Manhattan Institute's City Journal. He has also been the recipient of a National Humanities Medal, and he's the author of the new book entitled, Clarence Thomas and the Lost Constitution. The title of this article in the Wall Street Journal is “Thomas and Breyer’s ‘Stare’ Contest.” This is a references to the Latin term stare decisis, which has to do with deference to precedent by the United States Supreme Court.

There are huge issues here. Magnet gets right to them: "Justice Stephen Breyer lamented last week that the Supreme Court had overturned ‘a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it." He went on to say, "Today's decision can only cause one to wonder which cases the court will overrule next."

Stare decisis means let the decision stand, and we understand the Latin. We understand why it would be important. We count on the courts not deciding major issues one way this month and another way next month; but we also understand that courts make mistakes, and courts have to rectify those mistakes by reversing themselves.

This is exactly what both the left and the right, both liberals and conservatives have counted on throughout American history. The court has often ruled disastrously, as in upholding the constitutionality of racial segregation. That happened in the 19th century. It was reversed only in the 20th century, and we understand why. Stare decisis means let the decision stand, but that never meant let wrong decisions stand. It did mean that a court should give deference to previous courts in previous years and previous generations in order not to throw away essential wisdom, nor the dignity of the court. But here's where you have a real battle taking place between the justices on the court, and it's predictable—the conservative justices on one side, the liberal justices on the other side.

The point is this. Liberals were in control of the court for most of the last half century, and thus conservatives wanting to overrule or modify many of those decisions are saying that getting the decision right by the text of the Constitution is more important than upholding stare decisis—upholding the let the decision stand principle. And we also have to understand something else: no matter who you are, if you're liberal or if you're conservative, no matter which side you take in these cases, if it's not decided the way you think is right, you want that to be corrected. Everyone on the political spectrum at some point says, "That's a decision that was decided wrongly. It needs to be changed. It needs to be overruled."

Those who contend, as I do, for the sanctity and dignity of human life, desperately want to see the disastrous, infamous 1973 decision, Roe V. Wade, overturned, overruled, reversed. Similarly, honest Christians who believe in the definition of marriage as the union of a man and a woman, do not want the Obergefell decision to stand. There are numerous other decisions that also fit this pattern, but Justice Breyer, a liberal justice, really does believe that stare decisis is very important in upholding those liberal decisions made over the last half century by the federal courts.

Myron Magnet explains, "Court watchers assume the two justices," this is Justice Breyer and Justice Thomas, "Court watchers assume the two justices were arguing about abortion, although the case had nothing to do with that issue. But the clash over stare decisis, the doctrine that courts must respect precedent as binding runs much deeper. It is a manifestation," said Magnet, "of the crisis of legitimacy that has split Americans into two increasingly hostile camps." He continues, "On Justice Thomas' side is the belief that the government’s authority rests on the written Constitution. This view regards a self-governing republic designed to protect the individual's right to pursue his own happiness in his own way in his family and local community as the most just and up to date form of government ever imagined, even 232 years after the Constitutional Convention."

Myron Magnet continues, "Justice Breyer, by contrast, assumes America is rightly governed by a living Constitution, which evolves by judicial decree to meet modernity's fast changing conditions. Judges make up law, ‘with boldness and a touch of audacity,’ as Woodrow Wilson put it, 'rather than merely interpreting a Constitution he thought obsolete.”

Myron Magnet's absolutely right. He's even right in citing Woodrow Wilson, more famously known as President Woodrow Wilson, as being in many ways the fountain head of this idea of the Constitution as a living document. The courts and the government no longer bound by the words of the Constitution, but by whatever the president, or more often the justices of the Supreme Court, would determine is the spirit of the Constitution.

That's the very essence of interpretive liberalism. That is what has led to the vast expansion of the courts. That is what has led to the invention of all these new right, including a so-called right to abortion, including a so-called right of two people of the same sex to be married. But Magnet rather brilliantly draws a distinction between two different parties, as he calls them, on the court or two different parties in interpreting the Constitution. He calls one the Fairness Party. That would be represented by Justice Stephen Breyer. And he calls the other the Freedom Part, represented by Justice Clarence Thomas. But I also appreciate the fact that Myron Magnet gets to a more fundamental worldview issue that I speak of often on The Briefing.

Speaking of the Freedom Party, based upon the framers of the constitution, Magnet writes, "They wanted a written Constitution, strictly limiting federal authority, because they knew that human nature's inborn selfishness and aggression not only made government necessary, but also led government officials to abuse their power if not restrained." Magnet goes on to say, "US history justifies the framers' caution, as Justice Thomas has argued in hundreds of opinions since joining the court in 1991." But then he says, "The Fairness Party, represented by the more liberal justices on the court, now and then, they think that the court, or at least a majority of the justices should rule on a case not according to the text of the Constitution or even the text of statutory law, but rather by what they believe is right."

They should bend the Constitution to their understanding of what is right, rather than what the Freedom Party would insist is the mandate, and that is to at least understand the limitations of the Constitution in allowing any of us, and particular the federal government, to impose one set of opinions upon another. That's the very issue. That's why the Freedom Party is here called the Freedom Party. We operate within a written Constitution according to Justice Thomas, and that's what keeps the government from infringing upon our own rights. The government has to live within those words. The left has been arguing for over a half century that the government does not have to live within the words of the Constitution.

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Liberals Follow the Conservative Pattern for Preparing Future Judges: Understanding the Implications of Presidential Elections on the Federal Judiciary

But finally, as we're looking at the role of the Supreme Court and the federal judiciary in American life, Carl Hulse, also writing for The New York Times in the last several days, offers us an article with the headline, “Liberals Begin Lining Up Young Judges for a Post Trump Surge.” I'll simply summarize the article. It reminds us of the fact that when President Trump took office in January of 2017, he had an unprecedented opportunity to fill more than 100 judicial vacancies in the federal courts, something that has given President Trump a remarkable and historic opportunity to actually reshape the courts, something he has done aggressively and effectively. He's also done so very quickly.

How did he do so? Well, for one thing, this requires a Republican majority in the United States Senate, but it also requires something else. Decades ago conservatives, frustrated by the liberal direction of the federal courts, began to impress upon young law students, even to recruit young law students, to the importance to the judiciary, to help them to get through law school in just the right way and to clerk with the right kinds of judges, so that they would then become themselves candidates for the federal judiciary. This began during the years of President Ronald Reagan, and it has continued through groups such as the Federalist Society, right down until the present moment.

The Federalist Society provided the list that President Trump even cited during the 2016 presidential campaign from which he would draw nominees for the United States Supreme Court. But far beyond that, the conservative think tank infrastructure provided for President Trump an enormous number of persons who had already been vetted, already been considered, already been reviewed, as ready to be appointed to the federal courts, both the district courts and the appellate courts. President Trump, once again, has been extremely effective. He's also been effective not only at getting judges nominated and through the Senate confirmed. He's also been very, very effective in nominating judges who turn out to be actually conservative, not just theoretically.

Conservatives have been frustrated over the last several decades by the fact that many judges who were nominated by conservative presidents turned out not to be nearly as conservative as had been thought. Conservatives have learned how to be far more effective at producing and identifying conservative jurists. But this headline story by Carl Hulse in the New York Times tells us that now liberals are deciding to get into the same game. Well, why weren't they in the game already? Well, the answer to that is basically because they were in control. You don't have to have an insurgency until the other side has the momentum. The big issue here is the likely retirement of an incredible number of judges appointed by democratic presidents. It's just a matter of the calendar. That's what has the left very concerned.

If President Trump had 100 vacancies when he was inaugurated and took office in 2017, whoever's inaugurated as president in 2021 is likely to have an even greater number, and furthermore, there's another game being played here. The game is this: when does a judge decide to retire? The reality is judges time their retirement in a partisan way. They don't tell you that, but the calendar tells you that. Justices appointed by democratic presidents, they generally want to retire and offer the president a vacancy when another Democrat is in the Oval Office. The same thing happens for Republicans. Right now there's a Republican president, so a lot of Democrats are holding on a little bit longer than they might otherwise to their judicial seats, waiting to see if a Democrat is elected in 2020.

This points to another fascinating pattern. It turns out that when a president is reelected, an awful lot of justices who had been appointed by the president of the opposite party tend to announce their retirement. Why would that be so? Well, it's because those judges were holding on for a couple of years to see if the other party would be elected president, and when that doesn't happen they decide, "Well, we're not going to wait another four years.” So, then comes a flurry of retirements. But the article here in The New York Times just tells us that we really are looking at the fact that Americans have learned you really do divide justices and judges between liberals and conservatives.

People on both sides of the equation have argued that the Supreme Court and the Federal Judiciary is supposed to be nonpartisan. It's not supposed to have any kind of partisan dynamic at all. It's supposed to be a nonpartisan, independent branch of government, but in modern America it's never been so, and it's not so for the left, and it's not so for the right. It's not so for Democrats. It's not so for Republicans.

The fact that it is points to a breakdown of our constitutional order. The court is not to be so political, but since the court has decided to deal with so many political issues, guess what? It has politicized itself. But once again, the bottom line of this New York Times article is that in the case that a democratic president might be elected in 2020, the Democrats want to be in line to have a long list of liberal judges to appoint in the event a liberal president is elected. That means that this article not only comes to us as news. It comes to us as something of a warning.

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The New American Normal? Drag Queen Storytime in Your Local Library

Next, we turn to another article recently in the New York Times, this one by Liam Stack, the headline, “Drag Queen Story Time Continues Its Reign at Libraries, Despite Backlash.” I want to look at that headline for just a moment. “Drag Queen Story Time,” we are told, “continues,” despite backlash. Let's just think about that headline for moment. The use of the word backlash is not value neutral. It's implying something that should not have happened. It's implying that what you have here is an unwarranted, negative response to a very important issue of symbolic progress. Drag Queen Story Time. We've talked about it a couple times on The Briefing already. It started in Great Britain. It came to the United States. It features yet another very bizarre manifestation of the sexual revolution.

Here you have drag queens, this means men dressed as sexualized women in flamboyant costumes, reading to children in both public libraries and in some cases school libraries. This we are told is a way of demonstrating to children that they can be whoever they feel themselves to be. Make no mistake, there's a lot of moral messaging going on here—not to mention the fact that this is just another sign of how bizarre our times have come. Drag queens (and by the way, they call themselves drag queens) have been understood to be morally transgressive. That is to say they transgress moral boundaries. They've been on the margins of society. This it really does take a moral revolution to explain how the sexualized visions of drag queens can all of a sudden turn up as celebrated readers of stories to children in public libraries.

But again, the story is about the backlash. The story begins at a public library in San Francisco, big surprise there, where, "A drag queen arrived at story time and read to the children she met there." The children, we are told, no strangers to playing make believe, had fun, and soon the idea of drag queens hosting story time spread to New York. But then we're told about the backlash, supposedly because it's just getting so popular. The New York Times cited a legislator in Ohio, who called the Drag Queen Story Times, "A stunningly bizarre breech of the public trust." He wrote a letter that stated, "I can also assure you the taxpayers aren't interested in seeing their hard earned dollars being used to teach teenage boys how to become drag queens.”

One other aspect of this story and worldview analysis is that the article is premised upon supposedly the idea that it should be taken just as ordinary that a drag queen would show up and read to children in a library; but just notice, drag queens are not trying to draw attention to themselves. By the very fact that they are drag queens dressed in drag, they are trying to draw attention to themselves. But the way the moral revolution works, if you respond with the attention that's not positive to a drag queen wanting attention, then you're on the wrong side of history.

But I end by pointing to yet another opinion piece in The New York Times—this one by a very liberal writer, Michelle Goldberg. She has an article with the headline, “Leave Drag Queen Story Hour Alone,” but she makes the interesting argument that what you have in drag queen story time is the reversal of transgression. The very fact that drag queens want to read stories to children in libraries and that people will bring their children, at least some parents will bring some children, to be read stories by drag queens, indicates just how establishment drag queens have now become. She argues, oddly enough, and this is an argument that we need to note, that this represents a new stabilization of society, a new normal. It's an achievement, she indicates—an achievement we should be proud of as a civilization. Now, even drag queens show up in public library, not so much on the streets.

More than anything else, the point here is that America, morally speaking, has a new normal. If you can't deal with it, then you're the problem. It's Drag Queen Story Time today. Who can even imagine what the new normal will be tomorrow?

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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