Wednesday, December 20, 2023

It is Wednesday, December 20, 2023.

I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

The Road to Reversing Roe: A Major Investigation Into How the Supreme Court Came to Reverse Roe v. Wade

Now, there are certain developments that mean a lot more in journalism than they do where the water hits the wheel in terms of the rest of the culture. There are some stories that the press leaks or releases, and it’s intended to be, thought to be a gigantic story. It turns out not to be quite so significant. But sometimes you have a major press development about a major issue, and you say, “This tells us a lot about what happened. It also tells us a lot about the people who are telling us what happened and why it’s important.”

That’s a long introduction to get to a front page story in Sunday’s edition of the New York Times, and it was intended to be a massive topic of conversation. And it has been, but then again, not so much. The headline is this, “Behind the scenes at the dismantling of Roe.” A pair of reporters, Jodi Kantor and Adam Liptak, and both are veterans covering the Supreme Court, veteran reporters. They have done an in-depth analysis with an awful lot of background work, investigative reporting, lots of interviews with people, some are named, some are not named, strategically, about how in the world the Supreme Court came in 2022 to reverse the Roe v. Wade decision and basically to return the question of abortion to the states by reversing Roe.

Now, there are multiple questions to be addressed here, but let’s just look at the story. Let’s look at the investigative report. Let’s look at the narrative they put together, and only then will we ask the question, why did they do it this way? And now that we know this, if it’s all true, what difference does it make? So I’ll just say, number one, this is professional journalism at work here. What you see here is a very credible report, coming from multiple sources, done by very credible professionals. And these journalists are telling us a story, and we’re going to pay attention to the story. They also reflect their own worldview, the worldview of the paper and the worldview anticipated to the readers of that paper. That might turn out to be even more interesting. But again, hold that for a moment. Let’s just look at the actual report. And it is massive.

In the print edition of the paper, we’re talking about something like five full pages in the Sunday edition of the New York Times. That’s massive. They’ve been working on this for a very, very long time. Now again, the headline is, “Behind the scenes at the dismantling of Roe.” So you can see exactly what they’re saying to the reader. You want to know how Roe was dismantled at the Supreme Court? We’re going to tell you the story. So, how do they tell the story? Well, the first thing they tell us is that the first most important issue, the first answer to the question, how did Roe become dismantled by the nation’s highest court? The first answer is the death of Justice Ruth Bader Ginsburg. That is the first piece of the puzzle, and they make that very clear.

Now, throughout her adult lifetime, Ruth Bader Ginsburg was understood to be a lioness, so to speak, of feminist law and legal theory, legal practice. And she was well-known as a feminist attorney and attorney for feminist causes. She was well-known for her own reading of the Constitution, which came from a very liberal progressivist understanding of the Constitution. Not so much as a text that would limit judges in terms of words and sentences, but rather as a document that was to be open for social negotiation. That’s the liberal view of how to read the Constitution. And Ruth Bader Ginsburg was trained in that world. She operated in that world. She was general counsel for the National Organization for Women. She made arguments before the nation’s highest court before she was eventually nominated by Bill Clinton to the nation’s highest court, and she became an extremely influential associate justice to the United States Supreme Court. And everyone knew where Ruth Bader Ginsburg stood on all of these issues.

But the point in this article is that the dismantling of Roe, and that’s, again, the way the headline expresses the story. The dismantling of Roe, it can be traced to the death of Ruth Bader Ginsburg and to the fact that it happened when Donald J. Trump was able to name yet another justice to the United States Supreme Court. So, Donald Trump was in office four years as President of the United States, and he appointed three justices to the nation’s highest court. The first was Neil Gorsuch. After that, Brett Kavanaugh. And after that, Amy Coney Barrett. And as you come to the end of the Trump administration, Democrats are extremely nervous. Extremely nervous. And they’re nervous precisely because Donald Trump is President of the United States and Ruth Bader Ginsburg is very, very ill, fighting against cancer, which she’d been doing for a very long time.

Liberals on the court had been very concerned about Ruth Bader Ginsburg for a very long time, appreciating her liberal legacy on the court, but wanting her to have retired during the administration of Barack Obama so that a Democratic Liberal President would have appointed her successor. And just to state the matter very clearly, just doing the math, if Ruth Bader Ginsburg were still on the court when the Dobbs decision was handed down reversing Roe, you still could have had a Conservative majority, but not that Conservative majority and probably not that majority opinion. The last few weeks and months of Ruth Bader Ginsburg’s life was very much a political life in the ballots, because you had Liberals hoping against hope that Ruth Bader Ginsburg would outlast Donald Trump’s term in the White House. And they were very much hoping that, say, Joe Biden would be naming the successor of Ruth Bader Ginsburg. And that would have been a very Liberal appointment.

The President, who was then the Democratic nominee, made very clear his own commitment. And as you look at this, you recognize Joe Biden is one of the indispensable names for describing what’s gone on in the Supreme Court, because he was chairman of the Senate Judiciary Committee when that committee really, for the first time, overtly politicized a Supreme Court nomination. In that case, it was President Reagan’s nomination of Robert Bork to the nation’s highest court, and Joe Biden was chairman of the committee that at that time just changed all the rules. And basically, you had Chairman Biden, then Senator Biden planting the seeds for what would eventually be the dismantling of Roe v. Wade. He didn’t know that’s what he was doing, but that’s what he was doing.

So just to make the bottom line clear here, the politicization of this, I think, can be directly traced to then Senator Biden, Chairman Biden. And so the election of a President Biden was what was the hope of those on the Liberal side who were hoping that Ruth Bader Ginsburg could live that long. She didn’t. She didn’t live that long. And even though it was believed at the time that it would be very difficult for President Trump to move quickly to both nominate and the Senate then to move to confirm a justice to replace Ruth Bader Ginsburg, that’s exactly what happened. And it was a judge, in this case, Amy Coney Barrett, who was very different than Ruth Bader Ginsburg. And on the issue of abortion, really came from a very different position. And it was already known because of statements she had made even before she was a judge.

And when she was nominated by President Trump and then confirmed by the United States Senate and she took her seat, this was a reversal not just of one seat on the Supreme Court, but it was the cementing of a Conservative majority and an anti-Roe v. Wade majority on the nation’s highest court. It was exactly what Liberals had feared and what pro-life Conservatives had been hoping for, working for, and praying for for decades.

So that’s the first part of this story in the New York Times, and it’s basically an unveiled criticism of Ruth Bader Ginsburg for holding onto that seat when she should have retired when there was a Democratic President in office, and that was, of course, Barack Obama. It would have allowed President Obama to name her successor. Instead, it was the reversal not only of Roe v. Wade, but of that very important Supreme Court position that had been held by Ruth Bader Ginsburg. That’s the first part of the story.

The second part of the story is how this case arrived at the Supreme Court, how it was that the Supreme Court, or at least four justices of the Supreme Court, decided to take this case from Mississippi on a 15-week abortion ban. This is where their reporting is very interesting, and there are a lot of unnamed sources, but basically it comes down to the fact that there were four justices who granted what is known as a writ of certiorari. That is the authorization by the court to take a case. All it takes is four justices. That means not a majority of the court, that would be five. It takes but four justices of the Supreme Court, which means a very significant number to say, “We think this case is elevated to a cause the Supreme Court of the United States must decide.”

It took this one case on appeal, and at the center of this case was a 15-week abortion ban, that is to say a ban on abortions after 15 weeks in the State of Mississippi. And at least arguably that particular legislation had been written so that it could withstand this kind of scrutiny if the case were to arrive at the Federal Courts, and most importantly, at the Supreme Court. It was known as a direct assault upon Roe v. Wade. However, as this article in the New York Times makes very clear, there was no assurance that the case would lead to the question as to whether Roe would be reversed. In other words, even the State of Mississippi at one point said it is not necessary to reverse Roe in order to approve this 15-week ban.

That gets to the third big issue that is released in this investigative report, and that is the fact that there were at least two justices, and this turns out to be really interesting. One of them on the Democratic appointment side, one of the more liberal justices, that is now retired Justice Stephen Breyer, and a Republican-appointed more conservative justice. In this case, the Chief Justice of the United States, John G. Roberts, Jr. The two of them were evidently willing to work together in order to achieve some kind of compromise, which would perhaps at least say that the 15-week abortion ban in Mississippi or a ban on abortions after 15 weeks of pregnancy could be upheld or some restriction on abortion upheld without reversing Roe v. Wade.

And so I think the most important thing for us is to understand that the Chief Justice who was appointed by George W. Bush, President Bush having been elected by pro-life voters with pro-life expectations, and even as it is true that John G. Roberts Jr in the grand spectrum of Supreme Court jurisprudence is on the conservative side, no doubt about that. He is a more timid conservative. I think there’s also no doubt about that. And he’s very concerned about respect for the court, which he defines in terms of stability. And so the chief was clearly not eager, perhaps even not willing to move towards anything that would be a direct reversal of Roe v. Wade.

So, the Supreme Court took the case, again four justices voted to do so. The very interesting revelation in this, and we just have to assume, at least for this purpose, that it’s true, is that the newest justice, Justice Amy Coney Barrett, was not in favor of moving ahead with this case at this time because the timing wasn’t right. Now, at least one argument for why she felt that way is that she had been so recently appointed to the court under some controversial circumstances, and that the reversal of the position that had been held by former and then late Associate Justice Ruth Bader Ginsburg would overly politicize the situation. She may also have felt this because of certain facts related to this case.

In any event, it is known that Justice Amy Coney Barrett is a Supreme Court Conservative, and she’s very conservative when it comes to understanding how the Supreme Court is to understand and apply and interpret the US Constitution. It was a question of timing, according to this article, but it was not a question of her judgment on the case. And that became very clear when the decision was actually handed down in June of 2022. Amy Coney Barrett was expected to be a very clear vote against Roe, and it turned out that’s exactly what she was. The question was timing.

Another basic point made in this article is that the Conservatives on the Supreme Court turned the Mississippi case into more than it had to be. That’s basically the argument they make. They turned it into a full-frontal attack upon Roe v. Wade for a reversal of Roe v. Wade when that wasn’t absolutely necessary. And it’s also clear that the Solicitor General there in Mississippi was hoping for the very same thing, moving for the very same argument. And that would be a reference to Mississippi’s Solicitor General Scott Stewart, who appeared before the Supreme Court to make these arguments. He pressed for a reversal of Roe v. Wade.

Another insight coming from this article is the reason why a Conservative majority on the court decided to go ahead and take the issue of Roe v. Wade directly into view, and that meant the reversal of Roe v. Wade. It’s a major, major step for the Supreme Court to reverse a precedent that has stood for nearly a half a century. But of course, this was the goal of the pro-life movement. This was the goal of the Conservative movement in the United States for a half century that Conservatives have been working for. It’s why so many people voted for pro-life presidential candidates and why they hoped, worked for, and prayed for Conservative justices on the court who would understand the egregious malpractice of the Supreme Court in 1973 in the Roe v. Wade decision.

The timing issue among Conservatives, both on and off the court, was the fact that, look, all of a sudden there is now a very clear majority of Conservative justices on the Supreme Court, an unprecedented majority. But even as the death of Ruth Bader Ginsburg had come as such a tragic development in the eyes of the Liberals, there’s a fear that something like that could happen to a Conservative, especially after the unexpected death of a Conservative titan, that would be Justice Anthony Scalia in 2016. So, you had Conservative activists pressing for a reversal of Roe v. Wade. You had the pro-life movement believing that finally the facts of the case had arrived before the court at such a time that there could be a real hope for the reversal of Roe v. Wade.

But what this report is very keen to tell us, based upon this investigative journalism, is the fact that the Conservative majority on the court decided to move aggressively for the full reversal of Roe v. Wade because they had a similar understanding that this was the opportune moment. This was when the right case came before the court. This was the right time. Who knew what would happen in the future? This was an opportunity simply not to be missed. Then the case came down to the oral arguments to all of the briefs and amicus briefs, that is to say briefs by friends of the court, activist organizations, many of them on both sides of the issue. After all of that had been received by the court, the oral arguments had been held, it came down to the conference, which is the very secret meeting of the Justices of the Supreme Court.

But as you know, a lot of secrets are secret only so long as no one tells the story. And in this case, these journalists basically tell us at least something of what took place in the conference, or what at least their sources say took place in the conference. And that is that the Chief Justice was willing to uphold the Mississippi ban on abortions after 15 weeks, but he wasn’t willing to go to a full reversal of Roe v. Wade. So the math gets very interesting. But in any event, by the time it was clear that there was a Conservative majority to reverse Roe, that Conservative majority was actually looking to Justice Clarence Thomas as the one that had seniority in that majority to assign the opinion. He assigned the opinion to his colleague, Associate Justice Samuel Alito.

Now we just have to fast-forward to the process by which Samuel Alito put it together. And again, Justice Alito in his majority opinion went very clearly at Roe v. Wade. This was not a side blow, this was not a glancing blow. This was a full-frontal reversal, not only of Roe v. Wade in terms of its specifics, but of the jurisprudence of the constitutional argument that the Liberal court had made in 1973 in handing down the Roe v Wade decision. What’s most important is to recognize that Justice Alito, in his draft opinion, did not say that Roe v. Wade is wrong now. He said Roe v. Wade was wrong from the beginning. It’s wrong on its facts, wrong on its particulars, wrong in its argument, wrong in its application of the Constitution. It invented a right out of thin air that is simply without basis in the Constitution itself.

Okay. So you may remember that you really do know where this story goes next. It goes next to the leak. And the leak is actually one of the biggest stories in the entire history of the United States Supreme Court. It is a very big story. Never had there been a leak of this consequence, and that leak came just a matter of multiple weeks before the court would end its term and it would hand down the decision in Roe v. Wade. And you’ll recall that the big question when the leak was made, well, there were really two big questions, weren’t there? Number one, what is the decision? What decision is the Supreme Court going to take? Will Roe v. Wade survive or will it not? The oral arguments and the documents filed in the case, the litigation coming from Mississippi, the argument made by Mississippi Solicitor General, they all pointed to the fact that this was a full attack on Roe. Was it successful? The answer coming from the leak was clear, yes, it was extremely successful. Roe will not stand.

But then you had the question, who did it? Who leaked it? And then very quickly, there was a third question, is it real? Is it legitimate? Is this part of some kind of fake? Is this part of some kind of political machination? If so, who would have the advantage? Someone who might be on the court working for a Liberal justice or someone working for the court working by assignment to a Conservative justice, or was it one of the justices? We actually don’t know the answer to that question, and in all likelihood, we may never know the answer to that question. And as evidence of that, I’ll simply point to the fact that there are huge questions about sources in the Watergate controversy from the early 1970s that are still not known.

But once again, for the sake of time, let’s just fast-forward. It turned out that the leak was credible. It turned out that the final majority opinion striking down Roe was extremely similar to what had been leaked as an initial draft by Justice Alito. It turned out that the arguments and the votes on the court pretty much came down to exactly what one might have expected, just watching the oral arguments of the case some months prior. But the big headline is Roe v. Wade is reversed. The question of abortion is returned to the States.

Part II

A Long War Against Women’s Rights? The Left’s Narrative of Why the Dobbs Decision Happened

Now, what is really important at this point in worldview analysis is that we understand why this is so important to the New York Times. Why this issue is so important in terms, most importantly, the cultural and political left, and why there’s so much confusion elsewhere among Americans on this issue. It is because the issue of abortion turns out to be one of the singularly most definitional issues of American culture, especially in moral terms over the course of the last several decades, the half century, going back to 1973 and beyond.

Coming to the present, you would have to include the sexual revolution, the revolution in marriage law, the advent of no-fault divorce, as it was called, the development of contraception, the separation of sexuality, and the question of pregnancy, all these things. And the question of abortion landing right in the center of it, driven by feminist arguments that were very much based in the fact that was actually made before the Supreme Court in 1973, made by those who were calling for the striking down of all abortion laws, all laws restricting abortion. The ones who were making the argument for abortion rights, they made the argument that in order for a woman to be equal with a man, she had to be able to be as equally unpregnant as a man at any given time. That’s actually the argument that was made. One of the major arguments that was made.

So all of this is to say this is a massive story. It’s massively revealing about the fact if we’re the political and cultural left in the United States, and by left in this case, I don’t just mean those who identify as flag waving, card carrying members of the American left. I just mean the leftist direction. I mean the intellectual elites, the cultural production forces in the United States, those who clearly lean left when it comes to all these moral, political and cultural issues. They saw Roe v. Wade as something that was one of the signal milestone achievements of progressivism in the United States. They saw its reversal as nothing less than absolute cultural disaster.

This article, by the way, raises all kinds of issues. Life terms for justices is one of those issues. And so, people on the left, who had for decades said the Supreme Court is an engine for progressivism and what they liked, decisions headed in their direction, they now see the Supreme Court as a giant impediment to progress, by their definition. And that just points to the fact that there are huge issues coming down in every single election. There are huge issues about the future of America’s Constitutional order.

This particular article’s interesting because it reveals the fact that the New York Times is so concerned about this issue that it put this team of very qualified journalists on the story and gave them a very long time, and what was clearly a very long tether and an awful lot of budgetary support, to write this massive article that has taken up so much of the real estate in Sunday’s edition of the New York Times. That’s how important the abortion issue is. That tells us something we really need to know.

And it also tells us that Roe v. Wade was so central to the worldview of the cultural elites, the political progressives, the left, that they’re willing now to say, at least in part, look, there’s a lot of blame that needs to be directed at Ruth Bader Ginsburg. So, someone who was a heroine, all of a sudden now becomes openly derided as the one whose refusal to resign or retire when there was a Democrat in the White House, inevitably led to this, or at least inevitably led to the great risk that this would happen.

Part III

Do Courts Make Decisions on the Grounds of Emerging Social Consensus? Examining an Observation from the Late Justice Sandra Day O’Connor

So I really believe the issue of abortion is so front and center, so fundamental and important in the Supreme Court of the United States, so currently a part of our thinking about things, including the 2024 presidential election, I think this was time well spent looking at this massive report and what it means in many dimensions today. I also want to mention that the same newspaper just can’t let this go. So in the editorial, the commentary section of the same edition, so this was this past Sunday, Linda Greenhouse, who’s a veteran reporter of the Supreme Court. Now she writes a lot of opinion pieces. That also should tell you something. She’s written a piece entitled, “Sadly, Justice O’Connor was wrong.” And this of course is occasioned by the recent death of the retired Associate Justice Sandra Day O’Connor, whose funeral was held yesterday at the National Cathedral in Washington.

But the point here is that Linda Greenhouse is citing the late Justice O’Connor who said, “Rare indeed is the legal victory in court or legislature that is not a careful byproduct of an emerging social consensus.” And the important thing to recognize here is that you have Linda Greenhouse saying, again the headline is, “Sadly, Justice O’Connor was wrong.” Justice O’Connor is making the point that in her view, jurisprudence, the role of the justice and the proper application of the rule of law meant that judges should aim for “an emerging social consensus.” I’ll just say, that’s exactly the opposite of the Conservative argument, that what judges should rule upon would be the law and the facts period, not looking to the role of the judge as some kind of super legislator.

So I’m just going to mention this quickly in order to say, look, there are two things here. Number one, the same day the newspaper gave multiple pages to that investigative report, it also comes back with this article saying, “Sadly, Justice O’Connor was wrong.” And the fact that sadly is used in the headline, not to mention in the argument, is just to say that Linda Greenhouse and those who share her worldview believe it’s a sad thing that the Supreme Court and other courts do not basically rule on what they see as “a careful byproduct of an emerging social consensus.” That is, in many ways, exactly the distinction between more Liberal and more Conservative ways of understanding the Constitution and its role, the role of judges and their responsibility.

We now know, by the way, what we did not know fully, even when the Dobbs decision was handed down in June of 2022, and that is that the battle for life in the womb is actually even more daunting and more challenging than we knew. The responsibility of Christians in this age is to be equal to that task, encourage conviction, and in faithfulness.

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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