briefing, Albert Mohler

Tuesday, April 21, 2020

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

It’s Tuesday, April 21, 2020. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

Big News from the U.S. Supreme Court: An Important Decision About Criminal Justice Means Much More Than You Think

In the United States at the state level and the federal level, according to big news yesterday from the United States Supreme Court, all jury convictions must be unanimous. Now, you might be thinking that it has been the practice for a long time that jury verdicts of guilty must be unanimous and that would be generally true, but that would include two exceptions. The exceptions would be Louisiana and Oregon, but frankly, by the time the nation’s highest court ruled yesterday, it was really only Oregon. The state of Louisiana had reversed its previous allowance for non-unanimous jury convictions, but that had been changed without reversing some of the convictions that have been handed down earlier. In the state of Oregon, even as of yesterday, it was still hypothetically possible for a jury to reach a conviction without a unanimous verdict.

As Mark Sherman reported yesterday for the Associated Press, “The Supreme Court ruled Monday that juries in state criminal trials must be unanimous to convict a defendant, settling a quirk of constitutional law that had allowed divided votes to result in convictions in Louisiana and Oregon.” The AP article went on to state, “Justice Neil Gorsuch wrote for the court that the practice is inconsistent with the Constitution’s right to a jury trial and that it should be discarded as a vestige of Jim Crow laws in Louisiana and racial, ethnic, and religious bigotry that led to its adoption in Oregon in the 1930s.” Justice Gorsuch writing the majority opinion stated this, “In fact, no one before us contests any of this. Courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their state’s respective nonunanimity rules.”

The case at the center of the high court’s decision had to do with a defendant named Evangelisto Ramos. He, we are told, is serving a life sentence in Louisiana for killing a woman after a jury voted ten to two to convict him in 2016. The most important part of this ruling by the nation’s highest court is that even in state courts concerning state laws, guilty verdicts must be unanimous when there is a jury trial. Now, as you’re thinking about this, it might sound to be nothing more than what the Associated Press called a constitutional quirk, but it’s not a quirk. This has everything to do with whether or not the United States Constitution guarantees the integrity of a jury trial, and what the American legal tradition calls for is that American citizens to be convicted of a crime only in a valid court of law judged by a jury of their peers.

Now, as you’re looking at this majority opinion that was written by Justice Gorsuch, after all, remember he was the very first Associate Justice of the United States Supreme Court appointed by President Donald J. Trump, Justice Gorsuch here had argued that, “The existence of a tradition in Jim Crow discrimination had tainted the legal procedures undertaken in Louisiana.” Those have since been reversed by the state anyway, when it comes to future trials and in Oregon. Going back to Justice Gorsuch’s statement, he said that there was no contesting the fact that no party before the court argued with the accusation that in those two states, race was a motivating factor of their state’s respective nonunanimity rules.

Now, what’s the background to this? Looking in American history, we come to understand that the Jim Crow laws were an effort to try to discriminate against African Americans. Forced illegal segregation was the most obvious dimension of this, but another dimension was what we see here in the process of jury trials. When African Americans were seated on juries as a minority, the states of Louisiana and Oregon and some other states previously in their history changed their requirement that guilty verdicts would require a unanimous jury to instead allow for a guilty verdict with a majority of the jurors finding the defendant guilty.

Now, when you think about the process of a criminal trial, that is no small thing. Requiring unanimity is an enormous protection for any citizen of the United States accused of any crime. The right to a jury trial, the right to a jury trial that requires conviction only with unanimity of the jury is something that is cherished in American constitutional history, but frankly it is older than American constitutional history. It goes back centuries before the establishment of the United States and the tradition of English common law from which our laws were eventually derived.

Now, two things we need to keep in mind about the United States Constitution in this respect. Let’s remember first of all that the Bill of Rights, the first 10 amendments to the United States Constitution, were required at the time of ratification in the late 18th century for a sufficient number of states to ratify the Constitution in order to establish our constitutional form of government. That means that the first 10 amendments really are a part of the Constitution proper.

The other thing to remember is that our founders argued over and hammered out every single word in the Constitution with enormous care. Thus, let’s look at the Sixth Ammendment of the United States Constitution. It states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district where in the crime shall have been committed, which districts shall have been previously ascertained by law and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.”

The key words there are “impartial jury,” then the other protections that come with the American legal system, indeed the American court system. What you had in Monday’s decision by the United States Supreme Court in a six-three vote, and that’s going to be very crucial as we look at it in just a moment, what we have here is an affirmation of the founding genius of the United States.

It also points to the essential role of the Supreme Court of the United States in determining not only what the Constitution says and means, but how the Constitution’s provisions are to be applied to the 50 states. At the federal level, it has been established for a long time that juries must be unanimous, and that is true even now in the majority of states actually. By action of the Supreme Court it is now true as of today in all 50 states.

But as we’re thinking about this in worldview analysis, we must go back not only to the United States Constitution, to the text, to its historical context, to the arguments then and the arguments now, we must go into the decision handed down by the Supreme Court on Monday. I said the math was really important, a six-three decision.

Now, as you’re listening, you notice that the majority opinion was written by Justice Neil Gorsuch, again, the first justice added to the Supreme court by President Donald Trump. Therefore, he is virtually universally understood to be a conservative justice. But the number six tells you he wasn’t alone and there had to be some who were not considered conservative justices in this decision. But others looking at the decision itself would say, this looks like a fairly liberal decision, with liberal in this sense meaning inclined toward the protection of defendant’s rights rather than towards the right of the nation or a legal jurisdiction to prosecute criminals. But as I said, again, when we opened, there are some who would look to this decision and say, “That’s a fairly small thing. What’s the difference between ten to two and twelve to zero?”

But in reality, there are huge worldview issues implicated in this decision, not only in the decision itself, but in the court’s majority and the reasoning of the majority in this case. The fascinating thing is that this particular case brought about in the majority a strange constellation of conservatives and liberals, of conservative justices and liberal justices. As the Associated Press reports, “The decision produced an unusual lineup of justices with liberals Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor and conservatives Brett Kavanaugh, Clarence Thomas, and Neil Gorsuch supporting the defendant.” So wait just a minute. What does conservative and liberal mean if in this decision you have three identified as liberals, and make no mistake, they are liberals, and three identified as conservatives, and make no mistake, they are conservatives? So how did they end up three and three equal six and on the other hand, the three who voted the other way and thus are in the minority?

But if there was an unusual lineup in the majority, this means there had to be also an unusual lineup in the minority. Thus, we find out in the minority where two conservatives, the Chief Justice of the United States, John Roberts, and Justice Samuel Alito and one liberal justice, Justice Elena Kagan. So what in the world is going on here? Let’s look first at the majority side. How did those six line up together? Breyer, Ginsburg, Sotomayor, Kavanaugh, Thomas, and Gorsuch, how do they end up on the same side of the equation? A couple of reasons.

One is that when it comes to defendant rights, there never has been a clear liberal/conservative divide on the United States Supreme Court. That’s because the arguments don’t break down easily into a liberal and conservative divide. A central concern for political liberalism in the United States for decades has been the plight of the defendant in a criminal trial, but it’s also true that American conservatives have been very concerned about the power of the state to crush the individual and in particular through a criminal prosecution that is not legitimate and fair.

Liberals opposed both Justices Gorsuch and Kavanaugh, both of the Trump appointees, because they said that they would be predictably conservative, but in this case they are, I would argue, predictably conservative, but conservative doesn’t mean what the liberals asserted that it meant. For example, in American conservatism, there is a very strong strain of libertarianism, especially in this sense, seeing the individual as needing necessary protection from the leviathan state that could crush the individual and crush individual rights. But among the American conservatives, especially when it comes to constitutional conservatives, there have been others who have seen the very essence of that common law tradition channeled through the US Constitution as requiring a very high threshold for criminal prosecution and especially for a criminal conviction, a verdict of guilty. Thus the most famous constitutional conservative on the United States Supreme Court of the last several decades, the late Justice Antonin Scalia, like those who were influenced by him, Justices Gorsuch and Kavanaugh, had a very clear regard for an interest in the rights of criminal defendants and trial.

So in this sense it’s pretty easy to understand how that majority came together. How did the minority come together? Well, when it comes to the Chief Justice John Roberts and Justice Samuel Alito, they’re both unquestionably conservative and unquestionably they have a very deep concern for the rights of a criminal defendant, but they did not see the necessity of the Supreme Court reversing a 1972 decision of precedent, nor did they see the necessity of requiring absolute unanimity in all criminal convictions. That’s not to say they care less about the rights of defendants, but rather they saw the issue is framed differently.

On the liberal side, the same was true of Justice Elena Kagan, former professor of law and dean of the School of Law at Harvard University. It is also the case of the Chief Justice and the former dean of the Chief Justice’s own law school, Elena Kagan, are institutionalists. They understand the importance of stable institutions, you could put it in another way of institutional stability, and so they are less likely to order an overthrow of an established precedent.

But lurking in the background here in worldview analysis is something that might be even bigger and certainly more urgent. It’s going to be missed by many, if not most, but it appears actually explicitly in the text of the decision and the dissent. What is the issue? It is the reversal of that 1972 precedent. There’s a lot more at stake here than meets the eye. Back in 1972, the same issue came before the United States Supreme Court and at that time with the key issue being the opinion of Justice Lewis Powell, often considered a conservative, was that the Sixth Amendment did not apply to the states in every respect. The high court declared yesterday, oh yes, it does. It does so emphatically.

Yesterday, one of the things that happened at the nation’s highest court is that the court effectively reversed itself on a major matter of criminal law and it did so between the span of time of 1972 and 2020. Maybe some of you have figured out where this is going. Open speculation then arose among observers of the court as to whether or not at least one of the big issues, especially on the mind of Justice Elena Kagan, was the reversal of that 1972 precedent. The issue here is the Latin stare decisis. That is the principle, let the law stand. It is the importance of precedents and the ordering of thoughts and decisions of the United States Supreme Court. The Supreme Court tends to stand on legal precedent, most importantly on its own legal precedent. It does not often reverse itself and when it reverses itself, it knows that it is putting its reputation on the line.

It did so on Monday, just yesterday. The Supreme Court of the United States said that the court ruled wrongly in 1972 and thus must be reversed. But as I said, some of you have figured out where this is going. That precedent that was reversed yesterday was from 1972. What’s in the cross hairs? Roe v. Wade, the court’s decision that legalized abortion that came down the next year in 1973. The logic wasn’t lost on Justice Alito who wrote in his dissent yesterday, “I assume that those in the majority will apply the same standard in future cases.” Make no mistake about what Justice Alito was saying. He was speaking to the courts majority and in particular to the liberal justices in the majority saying to them, “You claim the principle of stare decisis but you violated that principle yesterday. I hope you’ll be consistent in future cases. Hint, hint.” There’s no hint necessary. Abortion was at the center of the issue.

Part II

Why Do the Liberal Supreme Court Justices Vote in a Bloc More Often Than the Conservatives? Conservative Disposition vs. Liberal Ideology

But next, this takes us to another dimension of analysis of the United States Supreme Court, and this is very important as we consider our responsibility as Christians to understand the world around us and in particular what’s going on in the United States. The centrality of the Supreme Court to so many of these discussions is simply very clear. USA Today’s Ilya Shapiro recently wrote an article at USA Today with the headline, “Liberal Supreme Court Justices Vote in Lockstep, Not the Conservative Justices.” Now in general, there was plenty of evidence for this in yesterday’s decision. You have the liberals hanging together far more than the conservatives. As a matter of fact, a majority of the conservatives went with the majority of the liberals in this case, but that’s the point. The article by Shapiro points out that if you look at recent sessions of the United States Supreme Court, it is not the conservatives who form a monolithic block. It is more than anything else, the liberal justices who vote together. Indeed, as the headline says, “Vote in lockstep.”

Shapiro writes, “Ever since Justice Anthony Kennedy announced his retirement last year, commentators have prophesied that President Donald Trump’s replacement of that moderate jurist would lead to a conservative majority running roughshod over core liberal concerns. That’s,” he explains, “why opposition to the milk toast establishmentarian,” those are his words I make clear, “Brett Kavanaugh was so fierce even before the 11th hour sexual assault allegations.” He continues, Shapiro writes, “Justice Kavanaugh was supposed to have singlehandedly overturned Roe V Wade, but a funny thing happened on the road to apocalypse. Particularly in petition rejections and other procedural votes, Kavanaugh has demonstrated a pragmatic approach,” and, says Shapiro, “A term with a few big controversies showed the liberals voting together much more than the conservatives.”

Now, let’s just step back for a moment. Let’s just understand the point that Shapiro’s making. The liberals vote in lockstep far more often than the conservatives and ask the question, why would that be so? Well, one answer would be that conservatives aren’t monolithic on a number of issues, especially when applied in particular situations, but there is a more general point here and I say this as someone very much committed to political and constitutional conservatism and it is this: Conservatism is not an ideology, it is a disposition. Liberalism often is an ideology and less a disposition. What’s the difference? Well, the conservative disposition is to understand the importance of stability of institutions, of process, the importance of precedent and history and tradition. The point of conservatism is the disposition to conserve, to conserve what is valuable in tradition, what is valuable in the institutions that make civilization possible, including marriage and the family. That’s what makes conservatism conservative, an effort to conserve.

Liberalism, from the very beginning of that term in modern politics, especially in the French revolution, has been far more ideological, based in abstract principles to which allegiance must be given. Shapiro writing about the kind of arguments you find on the right that you don’t find on the left tells us, “Such intramural fractures often reveal lively intellectual debates that one rarely sees on the left. For example, Justice Neil Gorsuch has joined the liberals five times in five-four decisions, four of them this past term alone with Gorsuch typically writing for the majority or concurring separately without adopting the liberal reasoning.” Now again, that just makes the point. It is more on the part of Gorsuch a conservative disposition. It is more for the liberals an ideological commitment. As Shapiro notes, Gorsuch sometimes concurred separately, “Without adopting the liberal reasoning.” Same decision without the ideology.

Shapiro then writes, “These have mainly been criminal law cases where Gorsuch’s originalism shines through to the benefit of criminal defendants in the same way Scalia’s often did to the surprise of those who weren’t paying attention.” Well, that’s our job, isn’t it? To pay attention. Ilya Shapiro, the reporter for USA Today, puts the issue in an explicitly political frame. He writes, “Speaking of politically fraught cases that end up five-four, it’s notable that there’s never a question of how the liberal justices will vote. Speculation runs rampant over whether one of the conservatives will go wobbly, whether out of unpredictable moderation, minimalistic pragmatism or idiosyncratic theory. But the liberals are guaranteed to please their constituency.” Now, this points to one of the issues of conservative frustration in recent American decades where conservatives are often frustrated that conservative justices on the Supreme Court don’t always vote in what they perceive to be a conservative way.

That is sometimes a very valid criticism and it’s behind the kind of concern that led candidate Donald Trump to issue a list of potential Supreme Court nominees in order to give voters the understanding of exactly the kind of justice that he would nominate if elected. That’s exactly what the president has done once he was elected. Gorsuch and Kavanaugh are the evidence of that.

But one of the bigger issues of confusion here is that there are some questions that don’t neatly break down between conservative and liberal in a political sense. When it comes to the rights of defendants, is that a liberal concern or a conservative concern? The answer is it is both. It must be an American concern and even when you have a majority here in a case that’s six-three, that doesn’t mean that the three conservatives and the three liberals got to the same place by the same reasoning. But let’s look at it this way: if you are a defendant in a criminal trial, you’re very glad they got there however they got there.

Part III

Why Is the Bar to Convict So High in Criminal Justice? The Answer is More Than Political or Constitutional — It’s Biblical and Theological

But finally, as we’re thinking about justice and the court system and the necessity of evidence and a jury trial, we need to understand that deeply embedded in the Christian biblical worldview is the understanding that there must be adequate evidence in order to convict someone of a crime and take action against that person on behalf of society. This goes all the way back to the Scripture. Just consider the Old Testament law and the evidentiary standard that was assigned by God to his own people. This was especially true as you think of capital cases, crimes such as murder, it was especially true as you think of the necessity of eyewitnesses. It just points to the fact that deeply embedded in the biblical worldview is an understanding that people will make mistakes and we must do everything possible to avoid mistakes in which someone is falsely accused and then falsely convicted of a crime, but that’s deeply rooted in something prior to that, isn’t it?

That just doesn’t come out of respect for law and concern for defendants or someone accused of a crime. No, it comes from something far deeper, and that is the biblical revelation of the fact that human beings are made in God’s image and thus human beings have certain, yes, the word’s not wrong, rights. Human beings have certain rights simply because every single one of us is made in God’s image. One of the signs of a society that cares about defendants is the fact that, as you look through its heritage, you need to look for why there would be an understanding that a human being accused of a crime would deserve any kind of consideration at all. Eventually your answer to that question isn’t going to be merely legal and constitutional. It’s going to be theological.

Criminal justice sets a very high bar because understandably a sane society doesn’t want to convict the innocent, nor does it want to fail to convict the guilty, but in order to try to prevent the conviction of those who are not guilty of the crimes of which they are accused, this means that the state, the government, the prosecution, is the side that bears the predominant responsibility to prove the case. A defendant must be proved guilty, not proved innocent.

But as we close, there’s another observation to make and that is that in reality, criminal courts do not find defendants innocent. They find them not guilty of the crimes as charged. Not guilty and innocent aren’t the same thing, are they? No human court has the right to find any human being innocent, merely to say of this crime that defendant is found not guilty. Rightly understood, there has been only one defendant in all of human history, in all the criminal trials of history who was truly innocent, and that sole innocent party was none other than Jesus Christ, the Lord.

By the power of the gospel and the imputed righteousness of the Lord Jesus Christ to those who believe in him, on that day of judgment, we are not found innocent. We are not found not guilty. We are found—here’s the real miracle of the gospel—we are declared to be righteous because of the imputed righteousness of Jesus Christ alone.

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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