Monday, October 18, 2021

Part I

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Biden Appointed Commission on Supreme Court Suggests Term Limits for Justices — So Why Would That Be a Bad Idea? Answer: Our Commitment to the Separation of Powers

The United States’s constitutional order is predicated upon a separation of powers. As you know, three different powers. And they are all given constitutional responsibility. The separation of powers is based upon a Christian understanding of sin, and thus the danger of concentrating too much power in a single branch or even two branches of government. Learning from previous examples in self-government, the United States struck out in its founding era on the course of inventing what the founders called a new order of the ages. And having learned from parliamentary systems and from autocracies, from monarchies, the founders of the United States put together a system of self-government, a constitutional system that included the executive branch headed by the president, the congressional or legislative branch in which you find the House of Representatives and the United States Senate, and then the judicial branch, the judiciary. And at the very top of that, the Supreme Court of the United States.

Now, of the three different branches of government, it is the Supreme Court that was expected to be the most quiet, the least controversial, the most out of the public eye. The Supreme Court stayed that way for most of its history, for most of our nation’s constitutional history until the second half of the 20th century. But in the second half of the 20th century, the Supreme Court began to take on for itself the establishment of policy in effect legislating from the bench. It’s a virus by the way that hasn’t been limited to the Supreme Court. Federal courts at every level have basically involved themselves in what the constitution’s founders would have understood to be legislative functions, the establishment of policy.

How did that happen? Why did it happen? Well in the second half of the 20th century, the legislature increasingly didn’t legislate. That’s certainly true now. Just look at all of the debate over various bills in Washington, DC. Legislators have decreasingly legislated. They have instead mostly talked about legislating. And when it comes to big controversial issues including the issue of abortion, the Supreme Court and the federal courts have basically just taken the issues on as if they have the authority to do so. This has been described as the judicial user patient a politics.

But in that second half of the 20th century, a debate that had been basically hidden in the academic world began to come right onto the public stage. That was the debate over how the constitution is to be read. And that means that there is now a basic divide in constitutional interpretation between those who understand the words and the text of the constitution to be binding and those who argue the constitution should be understood as a so-called living document. That current living judges should be free to interpret the constitution according to contemporary needs, not bound by the words and the grammar, the syntax of the constitution and its text.

Now, this isn’t an entirely new argument. As I say, it had basically been an argument that was known to the political elites and discussed in academic circles, but it exploded onto the public square when the Supreme Court began to hand down any number of decisions that divided the American people. Why is the Supreme Court deciding these issues? Well, those who hold to the idea that the courts should be an engine for a progressive change in the United States, well, they generally argue that the constitution is a dated document, and that in order to meet the needs of a modern and quickly expanding, we can say vastly expanding government and people, that constitution is simply going to have to be reinterpreted.

Conservatives would come back… And I’m going to argue that conservative position. Conservatives would come back and say, “No, the constitution only makes sense if it is a matter of words and sentences and binding textual authority.” And furthermore, the constitution has within itself a provision for amendment. If the constitution needs to be changed, there is a process whereby the constitution can be amended. The answer, say the conservatives, is not to just begin to free yourself from the words and sentences the text of the constitution because there would be no limits upon that progressivist impulse. Rather, the answer is summon the kind of political courage and build the kind of political support to amend the constitution. But the left has been getting away with making its basic changes in society without in most cases, the vast majority of cases, even coming close to proposing an amendment to the constitution. Rather, they’ve been using judges simply to interpret the constitution in a way that’s independent of the text.

Now, as I offered so many times in the past on The Briefing, just keep in mind that liberal constitutional interpretation has a great deal in common with liberal Bible interpretation. The higher critical method of understanding the scripture, or even more so, the kind of postmodern interpretation that says, “Look, we really aren’t bound by texts. Texts are just ancient artifacts, or at least they are the voices of the dead. We need not pay those texts any particular kind of heed. Certainly, we should not invest in those texts authority.” But let’s just point out our constitutional order is only and will endure only as a constitutional order if the text of the constitution and the authority of the constitution is honored.

So why are we talking about this on Monday, October the 18th, 2021? We’re doing so because in recent days, a commission, a 36 member commission appointed by president Joe Biden has brought a report. Not yet its final report that’s coming, but it brought a report on the progress of its deliberations about the future of the Supreme Court. Now, why would the president of the United States, the head of the executive branch, create a commission to investigate the future of another branch of government? The judiciary? Well, that’s because the left in the United States is extremely angry about the direction of the Supreme Court. A succession of increasingly conservative justices committed to interpreting the constitution by its texts, it’s words, it sentences.

An increasing number of conservatives have been added by Republican presidents to the Supreme Court of the United States. At least an organized effort in this regard began during the presidency of President Richard Nixon. He was elected in 1968. Reelected in 1972. President Ronald Reagan furthered that effort, elected in 1980. George H.W. Bush also indicated that he would seek to appoint conservative judges when he was elected in 1988. President George W. Bush did so in his two terms. First elected in 2000 and 2004. But the tipping point on the court was reached just in the last several years during the presidency of Donald Trump, because the Supreme Court, let’s just recall, has nine seats. And 1/3 of the sitting justices of the Supreme Court of the United States were nominated by president Donald Trump and confirmed by the Senate during his term.

Now, all of this has been building in the anger on the left because the left thought that it would gain a seat, the seat of the late justice Antonin Scalia when he died just in the last months of president Obama’s term. But the Senate majority headed by then majority leader, Mitch McConnell of Kentucky, refused to even consider the nominee that was made by President Obama, delaying until after the election. And that meant that Donald Trump got to a point Justice Neil Gorsuch to the Supreme Court. Shortly thereafter, he got to appoint Brett Kavanaugh to the Supreme Court. And in the very last months, indeed even the last weeks of his administration before the election of 2020, he appointed Justice Amy Coney Barrett. Three very clear conservatives.

Now, that meant that the way liberals are keeping score, and let’s just face it, when you’re talking about the court, you’re increasingly talking about more liberal justices appointed by democratic presidents, more conservative justices appointed by Republican presidents. The court is not supposed to be partisan, but the process of nominating and confirming justices is extremely political.

But when you think about the anger of the left, just consider this. They were counting a 5-4 court with a conservative majority when Justice Scalia died. They thought they could reverse the seat with a democratic president nominating a more liberal justice. That didn’t happen. It didn’t switch from 5-4 in a conservative majority, to 5-4 in a liberal majority. Instead, over a process of time, by the end of the Trump administration, it was a clear 6-3 conservative majority. The way the left would count it. You can understand the anger.

But this is how the political process works. And right now you’re looking at resentment on the left, including as we were going into the 2020 presidential election calls on the left for packing the court for adding new seats so that new liberal justices could be appointed to out-vote the conservative justices. Calls for packing the court gained so much momentum that in one sense, President Biden appointed this commission just to buy some time. It’s been presented as a bi-partisan commission of 36 members, but the commission that brought its interim report just last week is certainly not genuinely by partisan. Furthermore, before the week was over two conservatives who had agreed to serve on the commission resigned. They’ve not yet explained why they resigned, but there is a general understanding that they resigned because they do not want to identify with the final report or recommendations that may come from this commission.

But the interim report is fascinating on its own. Even at this point, here’s what we know. This commission is suggesting that packing the court might be a bad idea. Now, let’s just state, it is emphatically a bad idea. Increasing seats on the Supreme Court in order to gain political advantage might lead to a short term gain in the arithmetic, but it will lead to a long-term loss of credibility for the nation’s highest court. And our understanding of constitutional government and three independent branches of government means that the separation of powers only works if all three branches maintain integrity and credibility. But it’s also interesting just to note how that separation of powers is already problematic because this is a presidentially appointed commission, which is basically investigating the future of the Supreme Court.

By the end of last week, the commission indicated that it was not likely to propose adding seats or packing the court, but it did suggest that it might recommend term limits for federal judges. Most importantly, term limits for Supreme Court justices. We’re going to look at that argument. But it’s really interesting to note that the left, the ideological constitutional interpretation left is very upset that the commission has not gone with the idea of packing the court. An article by John Kruzel at The Hill cites Harvard law professor Laurence Tribe. Now, he’s writing from a rather liberal constitutional position. And what makes Laurence Tribe interesting is that, had presidential elections gone otherwise over the course of the last 30 years, Laurence Tribe might well have been what he and others expected he might be; either a justice on the court or even chief justice of the Supreme Court.

Laurence Tribe in this sense is something of a polar opposite from John G. Roberts Jr. that current Republican nominated chief justice of the United States. But Laurence Tribe is upset that this 36-member commission appointed by president Biden has not gone with the idea of packing the court. He said that the draft report “created the impression that although as a theoretical matter, enlarging the court is a possibility. The arguments for it are swamped by the arguments against”. He doesn’t like that. He went on to say, “I think a report that pours cold water on the one clearly legitimate exercise of congressional power to respond to a major jurisprudential trend will be a report I would have trouble signing.” Well, he might have trouble signing it, but there is no way that any kind of political momentum towards packing the court is going to emerge with the mid-term elections looming. At this point, President Biden can’t get his spending bills through, much less something as radical as redefining the Supreme Court of the United States.

Part II

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So Other Nations Have Term Limits for Judges? Well, Other Nations Have Other Constitutions. The U.S. Has Its Constitutional System for Good Reason

But going back to the interim report that was released at the end of last week, let’s go back to this idea of judicial term limits. Would that make sense? The commission said that experts had recommended an 18-year term limit for justices and pointed out that many state supreme courts or high courts have term limits for state justices. We’re also told in a report from Jessica Gresko for the Associated Press, “The report also notes that the United States is the ‘only’ major constitutional democracy in the world that has neither a retirement age nor a fixed term of years for its high court justices.”

Now, the report goes on to tell us that the commission isn’t sure that Congress has the power to create term limits for justices. It might require a constitutional amendment. Let me just state I am quite confident that it requires a constitutional amendment. But that would also involve Congress in determining the future of the Supreme Court. Do we believe in the separation of powers or not? Or are we going to have a supreme legislature? Or are we going to have a supreme executive. The founders of our country understanding the need for limited and orderly self-government understood that the separation of powers wasn’t just a feature. It was the essential genius of the American constitutional system. I believe that it’s undoubtedly true, that it would be unconstitutional for Congress to set the limits for judicial terms, much less for terms of justices of the Supreme Court.

Article 3, Section 1 of the US Constitution says that those who are nominated and confirmed to office, those judges and justices “hold their office under good behavior.” So that means that a judge or even a justice of the Supreme Court, even the chief justice of the United States, like the president of the United States, can be impeached and removed for due cause, say corruption, but there is no term limit on the judiciary.

Now, why would the founders have made it that way? Well, for one thing, if you had judges… Let’s just fast forward to justices of the Supreme Court. If you had justices who did have 18-year terms, then the latter years of those terms would just be laying duck years. You could have people time cases to come over to the court in order to try to have their case come after Justice X or Y had termed out and had left the court.

But there’s also the sense in which if you’re going to have term limits and you’re going to be told that the reason the United States should have term limits for justices is because the United States is the only major constitutional democracy in the world that doesn’t have such, we’ll just keep in mind we are also the only major constitutional system of government in the world that is governed by the Constitution of the United States. That’s the defining issue. The fact that other countries following other political systems based upon even common or divergent worldviews insofar as those other nations and countries adopt other constitutions, that does not inform the constitution nor the constitutional interpretation of the United States.

Now, this is really important as an issue for Christians to watch. But at this point, let’s just try to summarize where we are and then we’ll turn to some other issues. Here’s where we are. This commission has not brought its final report. Even the interim report came with the resignation of two of the vastly outnumbered conservative members of the commission. At the same time, the interim report brought howls of anger from the left. What does that tell you? It tells you that it’s very, very likely that this commission will turn to the left between the interim report that was discussed last week and whatever the final report may be.

I think that’s a pretty safe prophecy.

Part III

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Dave Chapelle Controversy Challenges the LGBTQ Doctrine of Harm — What Is At Stake In This Controversy For Christians?

But next, I want to turn to another big issue, and this one will be a little bit difficult to discuss. I want to be really, really clear what we’re talking about here. We’re talking about the comedian Dave Chappelle. Now, let me make very clear. I am not commending this comedian. I am not commending his comedy. I am not commending his very rough language. I am not commending even his understanding of comedy as an art. This is no moral commendation of Dave Chappelle, but it is, to point to Dave Chappelle in this controversy, as a matter that is extremely illuminating in terms of some of the most debated and controversial issues of our time.

Here’s the big issue. The bottom line is, does entertainment cause harm? Is it a form of harm? Is comedy, in the case of Dave Chappelle, a weapon? And is it legitimate for LGBTQ persons and especially trans activists to call for him to be silenced and for Netflix to cancel his program? The program debuted on October the 5th. For Netflix, it was a big winner in terms of the number of persons watching. Netflix has invested untold millions of dollars in this project, it wants to get those millions of dollars and far more out. But John Koblin reporting for the New York Times runs a story with a headline, “Chappelle Show Raises Question ‘Is It Art?’ but also ‘Is It Hate?” And as Koblin explains, “At the center of the unrest is The Closer, the much-anticipated special from the Emmy-winning comedian, Dave Chappelle.” We are told “Mr. Chappelle comments mockingly on transgender people and aligns himself with the author J.K. Rowling as ‘team Terf.'” And we are reminded that’s an acronym for trans-exclusionary radical feminist

The New York times describes it “a term used for a group of people who argue that one’s gender is fixed at birth.” Let’s just point out something. That’s what the vast majority of human beings throughout history have seen very clearly. That indeed gender identity is fixed at birth. By the way, that is what the vast, vast majority of human beings living right now believe also. But if you believe that, you’ll find yourself canceled or you’ll confront calls for you to be canceled, and especially when you have a big media platform. But Dave Chappelle is a very big media platform. And arguably, he’s trying to build that platform even with controversy over his statement and his criticism of the LGBTQ movement and his demands for artistic freedom to confront the orthodoxies of the LGBTQ activist community.

One of those central issues of orthodoxy is that it is a form of harm to say anything negative about anyone identified as LGBTQ or any dimension of LGBTQ experience right now, especially the T, the trans gender. The argument is, that art or comedy can be turned into a form of actual harm. And of course, that means that it should be eliminated. It should be stopped. It should be canceled.

Netflix, which is a massive streaming entertainment platform, has two co-CEOs, two chief executives, Ted Sarandos and Reed Hastings. Defending the program, Reed Hastings released a statement saying that even as Netflix is absolutely determined to be on the right side of history, “We will always continue to reflect on the tensions between freedom and safety. I do believe,” he said “that our commitment to artistic expression and pleasing our members is the right long-term choice for Netflix and that we are on the right side, but only time will tell.” He went on to respond to the harm argument by saying, “We do not see Dave Chappelle as harmful or in need of any offset, which we obviously and respectfully disagree on.” The disagreement by the way is not only the persons outside Netflix, but with some employees of Netflix. One of them was fired for having released confidential user information.

Ted Sarandos, the other of the co-CEOs put out a statement saying, “While some employees disagree, we have a strong belief, meaning Netflix, has the belief that ‘content on screen doesn’t directly translate to real world harm.'” LGBTQ plus activists responded in anger to the statements from both of the leaders of Netflix. But to the argument that entertainment doesn’t cause harm, they responded with particular vehemence because they have largely pressed the advance of the LGBTQ revolution in society by arguing that saying anything negative, saying anything critical at all, denying any one of this very radical claims of the LGBTQ movement is to cause harm. They’ve largely sold that argument to a generation of younger Americans for whom that has become an inflexible principle. But let’s note that principle does shut down speech.

Now, Christians, of course, aren’t just concerned with what’s constitutional and unconstitutional. We’re not just concerned with toxic arguments about cancel culture. We understand that when it comes to our own speech, our own choices in entertainment, what we find entertaining and funny, what we ourselves say, we know that we will ultimately be judged by the holy and righteous God for every idle thought and every word. We understand that. We will be accountable.

But when you look at the larger society, the LGBTQ agenda has largely shut down the argument that Dave Chappelle was now become a catalyst of reigniting, along by the way with J.K. Rowling who has indeed pushed back. She’s a woman after all. She’s been identified as a feminist. She has also been an activist for gay, and lesbian, men, and women. But the point is, she isn’t going along as a feminist or even as an activist with the transgender ideology.

Here’s the point. J.K. Rowling and Dave Chappelle may be big enough to resist the calls of the cancel culture. They just may be too big to cancel, but that’s not true of many others. And here’s where Christians need to understand. The argument about harm isn’t intended just to shut down comedians, even off-color comedians. It’s not intended just to shut down the voices of major professional athletes like Martina Navratilova. It’s not just to shut down corporate speech and bring just about every power in our society to heal.

When it comes to the LGBTQ agenda, this will affect what is taught in our schools, Christian schools, Christian colleges, Christian academies, and what is preached in our churches. The argument of language and message as harm is not just going to be directed against prominent comedians, or for that matter, non-prominent comedians. It’s going to be directed at every single Christian, particularly at the Christian church and the pulpit of that church. And that means that oddly enough, this isn’t just a controversy about comedy or even just a controversy about free speech. You can understand this is a religious liberty matter as well.

Finally, one note about all the coverage about Dave Chappelle, there’s another article at The Times by Jason Zinoman and that the conclusion of that article, he makes a very interesting observation that becomes our final issue of consideration. Writing about the Dave Chappelle controversy, he writes this: “Comedy moves fast. And right now, there are more funny transgender stand-ups getting hours ready at comedy shows in the city than ever before. The legacy of The Closer might be less than the jokes it makes than in the ones that inspires.” Why are we talking about those sentences? It’s because of that simple three word sentence. Comedy moves fast.

What does that tell us? It tells us that in a time of moral transformation, comedy shifts. What was funny just a matter of months ago, we’re told is not funny now. What’s funny now may not have been funny before. And what’s funny now may not be funny in the future. That just reminds us of one thing Christians need always to keep in mind. Comedy is a product of the culture. The culture determines what’s funny and what’s not funny. There’s a context to that. That’s the point though. Christians have to operate out of more than a fast moving cultural context. We have to move out of, and operate out of, and make our choices out of biblical principles that do not change. Comedy may move fast. Christians must think fast in order to stand fast.