Thursday, October 6, 2022

Part I

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Affirmative Action, Christian Conscience and Same-Sex Weddings, Andy Warhol’s Estate, and More: SCOTUS Returns to Term with Major (And Interesting) Issues on the Docket

No doubt this week will be understood as important for many reasons, but in the United States, one central reason is that this week marks the new term of the United States Supreme Court and already the court is seated for its 2022/2023 term. And of course, the big news is that there is a new justice sitting on the court. More about Justice Jackson in just a moment. First of all, we need to recognize that the court takes a long summer recess. Now that goes back to the early constitutional era in the United States, and it was made necessary by the fact that for one thing, the justices and those who appeared before the court, had to have a predictable pattern of when they would appear before the court and when the court would not be in session.

A summer recess is a very long tradition. Now this recess itself may appear to be quite long, but in the context of America’s political system, that’s probably a good thing. But the Supreme Court is now seated for its new term and it is off to a big start. Now, here’s where we need to understand the historical context. The historical context is this: we are living in a country that in terms of so many political directions, has been headed left, but the Supreme Court of the United States has been headed in the opposite direction. Now how is that so? Why is it so? Well, the first why has to do with the fact that conservatives developed a particularly conservative way of understanding the role of the law, and most importantly of the Constitution, after decades of liberal excess.

The first change in the court in terms of the modern court, came with a swerve to the left and one of the most important issues of that more liberal era on the court, particularly under the former Chief Justice Earl Warren, one of the biggest issues was the court became an engine for social progressivism and it frankly departed from the Constitution.

One of the hallmarks of that era, and it continued into the era of Chief Justice Warren Burger, was that the court found itself inventing new rights and declaring rights to exist in the Constitution. Rights that no doubt would’ve shocked those who actually argued, debated, and wrote the Constitution as it was ratified. Now, this didn’t happen by accident. It happened first of all by the appointment of more progressive judges, more progressive vested judges, to the United States Supreme Court. And in this sense, progressivism has a particular meaning.

A progressivist understanding of the Constitution is one that does not tie the meaning of the Constitution and thus the authority of the court, to the actual words and historical context and original meaning of the Constitution, but rather to what is declared to be a living constitution basically under the mandate and control of judges and justices who look at modern problems and then find a way in the Constitution or in what they declare to be an extension of a logic of the Constitution, in order to accomplish, and this becomes very, very important, in order to accomplish what progressives could not accomplish by means of the legislature. And that’s absolutely crucial.

So consider the fact that just in the 1960s thinking of the sexual revolution, you had Supreme Court decisions that declared first of all, the right of married couples to use contraceptive devices and then extended that right to those couples who are not married, or you might say people, men and women who are not married, and then of course the progressivist understanding eventuated in the hallmark 1973 Roe v. Wade decision that legalized abortion. And you put those decisions together along with several others, they basically become the greatest achievements of the left wing in American history as they’re looking at America’s constitutional tradition. You have to understand that in order to understand why the left is so unspeakably angry over the reversal of Roe v. Wade by the Supreme Court of the United States as it came to the end of its last term in June.

Once Dobbs was actually handed down and remember we had the fiasco of a leaked draft opinion before the actual opinion fell, but nonetheless it was a bomb. It was to paraphrase another, “A bomb that went off on the playground of the constitutional lawyers, particularly on the left.” And so immediately the left, along with so many in the major media and Hollywood celebrities and all the rest, they began declaring that the court had forfeited its legitimacy. And the reason they say that is because they absolutely bank on the fact that the Supreme Court would be a progressivist institution even if the rest of the society was not equally progressive.

But now we’re in a different situation. Now, I mentioned that the Progressivist understanding of the courts in general at the federal level and particularly of the Supreme Court of the United States, was that progressives would win in the courts and in particular at the Supreme Court, what they couldn’t win by legislation.

And you’ll notice that as we’re looking at so many of these issues, the birth control issue, no, it wasn’t legislated, it was decided by the court. And when you think about the definition of marriage, just fast forward to 2015, fast forward to the Obergefell decision that legalized same sex marriage, the liberals weren’t able to get this through Congress and get a president of the United States to sign that legislation. No. And remind yourselves of why. It is because in a representative democracy, the representatives are elected and an insufficient number of those who were elected believed they would be reelected if at that point they put themselves on the line to legalize same sex marriage. So they sought instead to get it done through the courts, which they did. And there’s an entire avalanche of progressivist jurisprudence in court decisions that are now threatened by the current, very clear conservative majority of the United States Supreme Court and remind yourselves again as to why there is such a clear conservative majority on the court.

It’s because during the four years of the presidency of President Donald J. Trump, he nominated three conservative jurors to the court who were eventually confirmed and that cemented a 5/4 or even 6/3 conservative majority on the court. We’ll be looking more closely at that math in just a moment, but let’s consider some of the cases that are coming before the court this term. Now there will be more cases than we will discuss today. This is just what we know today and this is just a highlight of very significant cases coming before the court. One of the most important, and it’s also one of the first to be heard this term, has to do with the issue of race and voting rights. And by the way, the issue of race and something is going to come up again and again in the court’s term that just began.

Now, one of the big questions that comes up has to do with how the Voting Rights Act is to be interpreted and how states are to be recognized as having authority to administer and direct elections within their own jurisdiction. This case by the way, which originated in Shelby County, Alabama, it’s already been heard in terms of oral arguments already this week and already the court is making news just by receiving the oral arguments. Now in this case, it is likely that the court’s conservative majority is going to say that states have the right to determine the rules of elections within their own states. And a kind of attention that’s been given to a state like Alabama because of the Voting Rights Act, is likely to be relieved. That is, the state is likely to be relieved of at least some of the stricture that have been put on the state by the Voting Rights Act and as administered by federal judges who in many cases had been actively engaged in and managing some of the strictures put upon respective state governments.

Now, there’s a very interesting issue that comes up here and that is the fact that about a generation ago, the court came close to moving in this very direction, but it came up a little bit short, but one of the statements made then in the previous case was that a federal supervision of the states in terms of their election mechanisms should be temporary.

And as a matter of fact, the justice at the time who wrote the majority opinion, that would be then associate Justice Sandra Day O’Connor, said that in something like 25 years from the time that decision was handed down, there would be little likelihood that that federal intervention would be justified. Well, we’re just a few years shy of that 25 years and given the fact that a case like this has already come to the court and the court has agreed to hear it, you can assume that the conservative majority in this case intends to do something with the case, not to fail to do something, because if they didn’t intend to do something with the case and that means probably changing the course of jurisprudence in this area, they wouldn’t have agreed to take the case in the first place.

But there are some other issues and another of those leading issues coming before the court this term, again has to do with race. But in this case it has to do with race and college or university admissions. This is often referred to as the issue of affirmative action in university admissions, but it is more oftenly referred to racial and ethnic preferences when it comes to the university admissions process. And again, we’re really talking about elite universities, prestige universities, and the issue of affirmative action. And over the course of the last several decades, in order to remedy racial imbalances, many of these universities have undertaken affirmative action programs, which means preferences, often referred to as racial preferences, when it comes to admissions and admissions standing.

But here’s where the issue gets really, really difficult, and if indeed you’re just trying to look at this say from a Christian perspective, looking at justice and righteousness and understanding that every single human being is equally made in the image of God, trying to be fair and just righteous in such a case, well, you might think, well at first we should do this. Maybe we do need to have some racial preferences in order to level the playing field. And if that means that a more qualified candidate here may have to give way to a less qualified candidate there, and here we really are talking about pretty quantifiable admissions issues, well you might say that’s what fairness would demand or as we often argue on the briefing, fairness is not a very good word, what justice would demand.

But then you get to another issue. You’re not just talking about say, identity politics here, you’re talking about very real human beings. What about the very real human being as an individual or as individuals, who find themselves now told you’re going to have to go back further in the line in order that someone else may, following different rules, get a higher place in the line.

But it’s not just that. How do you decide which groups deserve this kind of affirmative standing? Because the big issue in the cases that are coming before the court this term on affirmative action in college admissions, and they have to do primarily with two universities, University of North Carolina, let’s just point out that’s a public university, but a very prestigious public university, and Harvard University, a private university, one of the most prestigious academic institutions in the country. One of the big issues has to do with the fact that if you are going to try to say, manipulate the racial and ethnic identity of your entering class, well the reality is you are likely to disadvantage Asian Americans in order to advantage other racial and ethnic minorities. David Savage reporter for the Los Angeles time summarizes the issue correctly when he asked this, “Are Harvard and the University of North Carolina violating the constitution and federal civil rights law by giving an edge to qualified black and Latino applicants and by discriminating against Asian American students?”

That pretty much sets the issue out there and as he explains “Since the 1978 Regents of the University of California versus Bakke case, the court has held that colleges and universities may consider race as a “plus factor” for black and Latino applicants to create a more diverse class.” But he explains, “The court’s conservatives have long opposed this affirmative action and they contend the law prohibits consideration of an applicant’s race.” Well, that’s at least I would say, a fair and accurate way of setting the issue. Those are the debated issues that are very much at stake in this case. Now, once again, it is unlikely that the court would’ve decided to take this case if the conservative majority did not intend to do something with it, and we have a pretty good idea of where the court is headed here because the Chief Justice of the United States, John Roberts, has made his point emphatically clear and it’s a sentence that bears repeating.

He simply says in cases like this, and I quote, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In other words he argues, a racial discrimination that is supposed to remedy a previous racial discrimination still ends up being a racial discrimination, and somebody in real time and space is being discriminated against even as someone else is being discriminated for. Forgive the terminal prepositions, you get the point. The language should be clear. We’ll be looking more closely at how these issues are understood not only by the court but how Christians should think about them as these cases unfold. Right now we’re just trying to understand the importance and weightiness of the new Supreme Court term that has just begun.

Other cases coming before the high court include the question as to whether or not a website designer in Colorado who is an evangelical Christian, has the free speech right to refuse business that would demand that this particular designer design a wedding plan for a same-sex couple. That is to say, is it constitutional for the state of Colorado to force an individual to use artistic and technological ability in order to support something that the citizen does not believe is morally right. Now for Christians, you can understand this is a very big issue and it’s a big issue not just for individuals who are in a private artistic and contractual context, but for that matter, for Christian churches, Christian schools, Christian ministries and organizations. Because what you’re looking at here is the fact that those who are driving the LGBTQ and the larger sexual revolution, want to compel Christians and others with deep religious convictions, to violate those convictions in order to get with the revolution and get with the program.

The court has also decided to take up the issue of partisan gerrymandering for elections. And by the way, that’s another extremely complicated issue. All you have to do is go to a website that features such things as the exaggerated artistry of gerrymandered maps, and you come to understand that much of it has to do with nothing other than political fiction for someone’s political gain. And by the way, that can go either way. That can be a bipartisan problem. But the gerrymandering issue is going to be really interesting to watch. And one of the big questions the court is considering, is whether or not state legislatures have the right, that is the absolute right as against state courts, to draw those lines and create those districts.

Immigration, border issues, will be on the court’s docket, so will the issue of pork. The question before the court is whether or not California’s voters can require that all the pork, all the pork meat sold in the state of California, must come from farms where animals by California’s definition, are not abused, and where you even have breeding pigs that are given detailed instructions. I guess you could say the farmers are given the detailed instructions, not so much the pigs, as to how much space individual pigs must have to stand and furthermore, to turn around. Now here’s the issue. Midwest farmers, and the Los Angeles Times by the way, acknowledges this, Midwest farmers point out that 99% of the pork that is consumed in California comes from outside California. And this raises the question, does California get to set the standards for the rest of the nation when it comes to say food and agricultural production? And of course it isn’t limited to that.

Given California’s progressivist interest. California would basically do its best to legislate everything within the other 49 states claiming that if you want to do business in California, you’re going to have to meet California standards even if you’re doing business say, in Arkansas. Well, that’s an interesting case, no doubt. And even if the pigs aren’t following it, the rest of us will be.

Finally not in the sense that this exhausts what’s coming before the court, but it does exhaust what we’ll be talking about in terms of cases that we already know are coming before the court this term, Andy Warhol will be before the court. Now, not in a physical sense. Andy Warhol died back in 1987, but the famous modernist and boundary breaking artist, well, his estate is being brought before the court because it’s being sued by another artist, a photographer by the name of Lynn Goldsmith who in 1981 took a photograph of The Artist Prince. Yeah, I told you this was going to be an interesting case. And that particular photograph was used by Andy Warhol to produce a very famous set of prints he did. They were released in 1983. They were silk screen prints that were based upon Lynn Goldsmith’s 1981 photograph, but she didn’t receive credit or money.

And indeed Warhol, or at least the Warhol estate, is claiming that this is a completely new work of art even if it was based upon a previous photograph. Now, let’s just state the obvious, the entire future of the world is not at stake in that particular decision and to put it otherwise, most of us don’t have any stake in that particular case at all. But it does have to do with how copyright and artistic freedom are understood in this society.

Even if Andy Warhol is dead, this case that bears his name may actually set a precedent that would be worth our attention, but we’ll just have to wait along with the rest of America until the court hears the case and decides the case. And you already know by now, this term will not end until June and a lot of these cases will be cliffhangers all the way to the last days, if not the last hours of June.

Part II

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Historic Moment as Justice Ketanji Brown Jackson Joins SCOTUS for Her First Full Term — What Dynamics Will She Add to the Court and the Important Cases Before It?

We should also keep in mind that there is a new justice sitting on the court. Justice Ketanji Brown Jackson was seated on the court for the oral arguments this week. She replaces the retired Justice Stephen Breyer and Ketanji Brown Jackson, Justice Jackson, will be joining Justices Kagan and Sotomayor as the three liberal justices on the United States Supreme Court. So the addition of Justice Jackson does not in this case change the composition of the court.

But the court is made up of nine individuals, not just nine chairs. And these individuals bring their individuality, their own personal private jurisprudence, their own political philosophy, their own constitutionalism, to everything that they do. And so personality does matter, and the fact that you have Justice Jackson now on the court means there is likely to be a very energetic, liberal or progressive voice on the court.

And even if there is a 6/3 breakdown in the court right now, and the three liberal justices are understood to be Justices Jackson, Kagan and Sotomayor, all of them by the way, women appointed by democratic presidents, the fact is that the court is likely right now to be an extremely lively place. And there’s no doubt that Justice Jackson has a very lively intellect that she is certain to bring to this new role. And she made that pretty clear even in her participation in oral arguments in the cases that came before the court already this week. So stay tuned. Justice Jackson is likely to be very interesting to watch.

And by the way, every new justice is. Every new justice has to be observed for some time before we understand two things: number one, how that justice will operate on the court, and secondly, how that justice will become part of a larger court in which there are nine towering personalities. We’ll have to watch all nine of them now together, but the change of just one of those personalities really can make a difference. We may be moving from the rather reserved and cerebral justice Breyer to a more energetic Justice Jackson. Time will tell and we’ll be watching together.

I wanted to put those issues about the United States Supreme Court and its new term before us. I knew it would take some time, but before this addition of the briefing comes to an end, something very important is going on this week. I told you it was an important week, not just before the United States Supreme Court.

Part III

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Fat is Back — Fat Bear Week, That Is: Watch and Vote for Your Favorite Fattest Bear, to the Glory of God

But this week marks Fat Bear Week in Katmai National Park and Preserve in the state of Alaska. And this is a big week. I want speak to families, to parents. You need to look at this with your children. You need to vote for your favorite fattest bear as a family or as family members. You need to look at the live stream of the bears that are now feeding on salmon in that beautiful river.

And you need to just look with wonder at God’s creation and understanding that he made these brown bears as they are known in Alaska, grizzly bears to the rest of us, he made them for his glory in such a way that they grow skinny of course as they are hibernating, and they have to grow fat before they start their hibernation again. And this week marks one of the most important weeks in their feeding on the river, and these bears are going after these salmon, sometimes eating dozens of them in a single day. And you can watch them grow. These grizzly bears are huge, many of them, and they are getting even larger. And it is an absolute wonder to watch them. The official observance of the week started yesterday, but the voting starts today and Americans have the ability, and for that matter, I think even others watching these bears have the right to register and to vote on who you believe is actually the fattest bear, who wins the Fat bear competition for 2022.

The National Park Service that sponsors Fat Bear Week in Alaska says that the voting should be “For the bear you believe best exemplifies what? Well best exemplifies fatness.” We are told the bear with the most votes advances to the next round, only one will be crowned champion of Fat Bear Week. You can find a lot more information just by googling Katmai National Park and looking at Fat Bear Week.

But as you do, and by the way, there is an incredible live stream of the river with the bears fishing in the river, and I will tell you, it is incredibly addictive just to watch to the glory of God, these massive bears doing their very best to become even more massive. And they have personalities and they are identified by the National Park Service. And as you may participate in Fat Bear Week, year-by-year, you can see some of these bears return. You can see some evidence of the struggles they’ve been through as they come by, year-by-year to feed in the river.

And you can see some of them grow up. Actually go through the equivalent of bear childhood and teenage years. Some of them are well into middle age and well the oldsters are having little difficulty holding their ground, but I’m pulling for Otis. Otis won last year. Otis has won several annual titles. Otis is … Well, he’s got some miles on him. He’s lost some teeth, but Otis can still fish and he’s fascinating to watch. The leading bears to watch this week include Number 32, and the name tells you something. His name is Chunk. He’s an adult male and he means business. He’s only two and a half years old, but he is already quite a threat and quite a contender in terms of Fat Bear Week.

Number 151 is Walker and he’s known as a bear who walks. You’ll love the fact that the National Park Service says that he’s a large adult male “with a light bulb or pair shaped body.” Number 164 doesn’t have a nickname, but he’s identified as a small adult male. We’re told that fishing at Brooks Falls isn’t easy for young bears of this particular bears size, “It can be difficult to develop angling skills when larger bears occupy the most productive and easiest to access fishing spots. Younger bears must wait their turn.” And yet we’re told 164 is doing his best to earn his turn. A long-time favorite for Fat Bear Week is a female bear known as 435. She’s named Holly. She’s described as “usually very fat with grizzled blonde fur.” Her appearance sometimes resembles “the shape and color of a lightly toasted marshmallow but she’s no pushover.”

But one of the things that is most impressive to the glory of God about watching Holly is how she has taken care of her young, even when her young had been wounded and even as she has basically adopted other young bears as well. Quite a fascinating thing to watch. How is it that these animals show the glory of God in how much they love their own offspring and furthermore in how well they care for them. When it comes to Holly, here’s the suggestion, “Don’t mess with Mom.”

I told you I pull for Otis. He’s number 480. We’re told that he remains a large bear, but he faces a lot of strong competition from younger adult males for the preferred fishing spots. He, by the way, has developed his own way of fishing. He sits and let the fish come to him. The National Park Service says this is quite successful, “He once ate 42 salmon in a single sitting by using this strategy.” 42 Salmon. I’d say it’s a strategy that’s working. Will he be the champion this year as he was last year? Time will tell.

But one of the other leading contenders, well, his name is a number and that’s all he needs. He’s identified as a very large adult male with a blocky muzzle and a floppy right ear. His name says it all. What’s his name? 747. God has seen to it that it’s not safe for us to pet a grizzly bear, but it is safe for us to watch them and we can watch them to the glory of God. And there’s something absolutely marvelous about these grizzly bears doing their best to get as fat as they can to prepare for hibernation in order to wake up in the spring. And you know it well, start it all over again.

Meanwhile, the salmon, you could say just have a little respite while the bears are sleeping. It’s important for Christians to think about an issue as important as the opening week of the new term of the Supreme Court, but to the glory of God, it’s also good for Christians to think about Fat Bear Week in Alaska. God made those bears to eat salmon and he made them for his glory.