Thursday, June 27, 2024

Part I

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Supreme Court, Not Supreme Moral Judge: SCOTUS Has to Rule by Law and Constitution, Not Moral Intuition

One way or another, today is going to make political history. And that’s true if nothing else, because of what’s going to take place tonight in Atlanta, Georgia, the first presidential debate of the 2024 general election for the Office of President of the United States. So this means that at this point, even though we have to say the presumptive Democratic nominee President Joe Biden and the presumptive Republican nominee, former President Donald Trump, even as they face off tonight in Atlanta, by the way, we have to say that because this debate is so early, the party conventions haven’t been held yet.

But nonetheless, the presidential campaign has been holding up for quite a while, and Americans tonight are going to have the opportunity along, we might add, with the watching world, to come to a better understanding of Donald Trump and Joe Biden in the year 2024. That’s actually a crucial statement. In other words, Americans know the former president of the United States, Donald Trump, and Americans know the president of the United States, Joe Biden. But the last time they faced off was four years ago, and they are not each only four years older. They are also politically well downstream from where they were in 2020.

So when we come to the close of The Briefing today, I’m going to offer some suggestions about how to watch the presidential debate and then Lord willing, tomorrow will be back with an analysis of what happened and what they said. But political history is also being made, legal history, constitutional history with the end of the Supreme Court term. And we had been told to expect at least some decisions handed down Wednesday, that is yesterday. And then the clerk of the court indicated that other decisions will be handed down on both Thursday and Friday. That’s an indication that even as the Supreme Court has an unprecedented number of pending cases not yet released, that the Supreme Court still intends to end its term in the month of June. So that gives it two more days, today and tomorrow.

Now, the juxtaposition of the Supreme Court, especially given the stature and volatility of some of the cases yet to be handed down, you add that to the context of the presidential debate. You put that in the context of a rather frenzied period in American politics, and you really do have a recipe for some massive competing headlines over the course of the next 24 to 48 hours. If nothing else, the folks on television are going to have plenty to talk about. It is hard to remember a time when there was the juxtaposition of so many events of this stature happening at one time, particularly at this season of the year, but here we go.

Now, what happened yesterday at the Supreme Court? Well, as it turned out, there was expected news from the Supreme Court and it came down expectedly. And then there was unexpected news, in this case, actually accidental news, that makes it big news.

Okay, so what was handed down yesterday? Two different decisions on two pending cases. Neither of them, by the way, the kinds of cases that the country was holding its breath for. And so in both of these cases, the Supreme Court made rulings. And in the first of them, it wiped out an anti-corruption law that had barred officials, this is a federal law, government officials, from taking gifts for past actions.

Now in this particular case, it goes to the state of Indiana where a former mayor was paid a $13,000 payment from the owners of a local truck dealership, a local business when he had done things on behalf or to the favor of that business, but he was now out of office. And so the Supreme Court came back and said, “A bribe is an exchange for a present or future favor, not looking backwards in the past.”

Now, here’s where it’s really important for us to understand, a couple of things about the Supreme Court of the United States. It is not intended at the end of the day to be a supreme arbiter of all matters moral. It is not to be the moral conscience in this sense of the entire United States of America. And so the Supreme Court is to rule on the law. It is to rule on the Constitution. It is to rule as to whether something is legal or whether something is constitutional, whether the legal processes have been followed, whether the Constitution has been honored. But the Supreme Court is not where you go to find out if adultery is right or wrong.

And so as you look at this, you recognize this mayor did something which is at the very least morally dubious. I mean, you look at this and you say, this is an embarrassing situation. This former mayor was paid $13,000 by someone who had gained advantage during the time he was mayor and frankly had participated in decisions that were to the advantage of this business. So it’s easy to look at this and say, “Well, the Supreme Court should have said that’s wrong.” At the very least, it’s morally objectionable, “Something’s wrong here.” But the Supreme Court, and again, this is just good for us to remember, it isn’t primarily about what is right and wrong in the sense of good and bad. It is about what is legal and what is constitutional versus illegal and unconstitutional.

And here’s where the conservative justices hanging together on this did not come together in complicity to cover a crime they came together to say, “We just have to follow the words.” And the words are the words. And bribery means one thing. And this is not bribery. A bribery is a present tense or future promise of, “If you do this, I will give you that.”

But that’s not what took place here. What did take place here is I think in terms of any Christian understanding of morality, incredibly dubious, and potentially just outright a corrupt action. But as you’re looking at it, the justices in this case, the majority of justices on the Supreme Court said, “Well, we are not ruling on what is right or wrong. We’re ruling on what is constitutional and unconstitutional, what accords with this federal law against corruption and what frankly doesn’t fit the law.”

It’s just a good reminder to all of us that the law has a very important moral role, but it is a limited role. The Christian worldview makes very clear that the responsibility of human law is to be built upon the superstructure of moral law that pre-exists the court. And sometimes the courts do have to rule on big moral questions, but they are supposed to rule primarily on the basis of the statute or the Constitution.

Now again, the Constitution can take you into deep moral territory such as, is an unborn citizen to be respected and is that life to be protected? That is a huge moral issue. But the Supreme Court is still not supposed to rule primarily about abortion, good or evil, but rather the right to abortion, real or false, constitutional or unconstitutional. So it’s good for Christians to understand the majesty of the law and the importance of the law, even the teaching value of the law. But it’s also important for Christians to understand that at the deepest level, morality is built upon the law of God revealed in God’s word, and also as Scripture says, in creation. But that is a pre-existent law that pre-exists the court.

The role of a human court, by the way, is to act in accordance with the moral law. And the founders of this country were unembarrassed to say that meant to be informed by the natural law, which we understand to be natural precisely because the creator intended it.

But the point for the court here is that that is a pre-existent and universal law. The responsibility of the court, even the highest court in our land, is not to be the final arbiter of morality, but rather to rule in accordance with pre-existent law, statute and constitution. But the other decision that was handed down wasn’t in any sense a clear left-right conservative-liberal pattern. In this case it was another 6-3 decision, but you had in this case, liberal and conservative justices on the same side when it came to the six, the majority of the six. This was a case that had to do with the Biden administration and whether or not the Biden administration had illegally or unconstitutionally acted through the censorship or influence of social media in a way that violated the First Amendment and frankly exceeded the constitutional limitations on the administration’s actions.

Now, there were conservatives who made the argument that the Biden administration policy was a violation of free speech, and that it was an unlawful intrusion of the government into a social media platform in order to message the way the administration wanted the messaging to go. Remember, this is in the context of Covid. And the case was basically about the government, the Biden administration pressure on social media platforms to censor speech that was inconsistent with the administration’s message.

And the Supreme Court did not give encouragement to the government to move further in that direction. It did do something interesting, and this is often what’s not caught in the reporting. The Supreme Court didn’t say, “We’re handing down a final judgment on this issue.” The Supreme Court did not make a final ruling in any sense on whether or not the Biden administration had acted rightly or wrongly. Instead, it turned back a preliminary action in order to say, “We’re going to return this to the court process.” And the lower courts really need to deal with those basic questions and we will consider it if and only if we are necessary at the end.

So all of this goes back to the federal courts and in particular to a federal court of appeals. So the basic question is still going to be argued before that court. And so we have to stay tuned. And it could be a matter of a year, two years, who knows before this comes back to the Supreme Court if it comes back at all.

Part II

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Oops. Not Ready Yet? Accidental Posting of SCOTUS Decision Raises Questions About Abortion Case from Idaho

But those are the two decisions officially handed down. You can go to the website of the Supreme Court of the United States and you can find those decisions. What you won’t find is a third decision that was accidentally posted yesterday and then was taken down by the clerk of the court. And this is not a good thing. It is not a good thing for the prestige of the court. It is not a good thing for the authority of the court.

This was, in one sense, a clerical error. It was a technological error, but you know there are consequences to errors. And what happened yesterday is that for a brief matter of time, a court’s decision on the matter of an Idaho abortion case was posted, and thus at least some news sources, in particular Bloomberg News, were able to download the decision before the court rectified the situation and took it down.

And so the big question now is hauntingly similar to what happened in 2022 with the Dobbs decision, is what Bloomberg has and on which it’s reporting, is it the final judgment of the court? We don’t know because the court took it down. But we presumably will know within the next 24 or 48 hours. This is not a good situation. It’s not a disaster either. But what is rather problematic, I think, at least for the pro-life cause, is the fact that the Supreme Court in this decision accidentally posted, appears to take a side that is going to allow for so-called emergency abortions at an increased number in the state of Idaho. Or to put it another way, if this decision is final, it is likely to limit the power of the state of Idaho to control abortions or prevent abortions under some situations defined as medical emergencies.

But I’m not going to go further than that because we do not have the final ruling. Or actually we might and not know it, but at this point it is not final according to the Supreme Court of the United States. So in the strangest way, we may now know, we may not. But we almost assuredly will know pretty fast whether we knew or not.

Part III

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Huge Moral Issues Come to Fore: Julian Assange Pleads Guilty to Federal Charge

But next, as we’re speaking about legal issues, I want to turn to a completely different story. And this is the headline about Julian Assange and the WikiLeaks case, because Julian Assange who is, and has been, one of the most notorious figures in terms of the release of American information that is classified sensitive national security information and the illegal release of that information, he finally reached an agreement with federal prosecutors and he went all the way to the middle of the Pacific to a federal courthouse in an American outpost in order to plead guilty to one felony count of wrongfully obtaining and using American classified information. And thus American prosecutors have indicated they will drop the multitude of other charges against him, and both sides in one sense will move on.

Now, this story goes all the way back to the first years of the 21st century. It goes all the way back to 2006. And of course at that point the Internet’s a fairly new thing. And you have people who call themselves journalists, though they’re running the kind of internet site you can put up very quickly. WikiLeaks was intended to be a place where leaked material could be publicly posted. And of course it comes with political, it comes with moral, it comes with, in some cases, life or death effects.

The WikiLeaks project was undertaken originally by Julian Assange. He’s now 52 years old by the way. So that tells you how young he was when this happened. And WikiLeaks obtained, and of course we now know how they obtained it. They obtained it illegally as it was taken illegally by a now former U.S Army intelligence analyst named Brendan Manning, now known as Chelsea Manning. That’s another part of the story. The transgender issue gets twisted into this as well. And the individual now identified in the news as Chelsea Manning had released this material to Julian Assange and to WikiLeaks. It was posted and we’re talking about a massive dump, a massive release of classified national security information.

And by the way, when it came to many of those sensitive areas around the world where quite frankly people are putting their lives on the line, were putting their lives on the line for cooperation with the United States and its military and intelligence services, that material was released without the names redacted, which meant there were persons whose names put them on lists almost assuredly marked for death because of this action.

One of the very interesting twists in all of this is that you had major American, and for that matter international, but what matters for the law here is the American media corporations that stepped in and said, “This is a matter of press freedom.” If the United States is able to prosecute Julian Assange for this in terms of posting it on a website, then that’s an infringement on the freedom of the press. We now know, for example, that major American newspapers, at least on the corporate side, sided with Julian Assange, or at least they sided against the government in making these claims of espionage and the false obtaining and false dissemination of American national security materials. And this is one of those cases that’s indicative of life in the digital age and the dangers, as well as the opportunities, that come with the technology such as the internet.

The United States pretty quickly identified Julian Assange who was a native of Australia and wanted to go after him. And this led to one of the legal governmental espionage related soap operas of times. It’s hard to imagine a story that gets more convoluted than the story of American attempts to arrest Julian Assange and then to bring him to trial. And that is because foreign nations decided to try to protect him. He sought refuge. He stayed in an embassy of a foreign nation in London, there for years, Assange went into the Ecuadorian Embassy in London, and he was there for a long time until the Ecuadorians were done with him. He spent seven years there. And then he entered a British jail where he served a number of years. And by the way, that situation is pretty complicated as well.

America’s allies, and I’ll say in particular our English-speaking allies, let’s say the British and the Australians, because both were involved here, they wanted to bring this issue to a conclusion. And so almost assuredly what took place with the resolution that was announced by federal prosecutors in the United States, that resolution that came just in recent days, it came after lengthy international negotiations. And so you ask, “Well, why would our allies prevent us from being able to take legal action against Julian Assange?” And the answer is because it really does get complicated. And yet it only gets complicated in a situation where you have multiple jurisdictions and all are committed to their own version, their own understanding of the rule of law, and they all see themselves as bearing a responsibility.

On the part of the United States. It was a responsibility to protect our military personnel, to protect those who cooperate with us, to protect our intelligence sources, to protect our intelligence agencies, and frankly, to uphold our national security. On the part of others, and in particular, Britain, a very close military ally to the United States, as is Australia, they had other civil liberties issues they were concerned about as well.

And so how did this end? Why did it come to a conclusion? And you can say on the one hand, it is a testimony to the fact that in a very complicated world, moral issues often do not get settled in terms that are morally satisfying. I think it’s fair to say the United States is not morally satisfied in this situation.

On the other hand, the rule of law comes with certain protections, certain processes, certain constitutional rights and certain international complications when you have many nations involved. That mean that eventually, eventually is a long time in this case, the best you can hope for is some kind of settlement. And what the United States got out of this is not insignificant morally. I think even thinking about it over the course of the last day or so, the United States government did get something very, very big out of this. There was a huge moral and national security gain for the United States in this plea agreement. And you could say, “Well, Julian Assange pled guilty only to one felony count.” Yes, but he pled guilty to one federal count, of wrongfully obtaining and disseminating national security information of the United States.

And so that’s massive. It’s the difference between being indicted and being convicted. It is the difference between being charged with a crime and being guilty of a crime. And for his own reasons, and of course a lot of that had to do with escaping the threat of a more extensive U.S prosecution, for his own reasons, Julian Assange accepted this agreement and the United States accepted the plea down to one felony count and agreed to take the time served in Great Britain as satisfaction for the prison term that would’ve come with this crime.

Now, if he had been found guilty on a massive number of these counts as was possible, he could spend the rest of his life in jail, but that became something that was politically impossible and legally extremely improbable. And so I’m going to score the United States as having a victory in this because that one guilty count is going to stand beyond any appeal as a very important moral statement.

Part IV

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Congressman Bowman Was Too Liberal for Democrats? New York Congressional Primary Teaches Big Lessons

But in political news with worldview significance, we just have to look at one congressional election that took place in the state of New York, and in this case it has to do with the 16th District in the New York primary on the Democratic side where the incumbent member of Congress, Jamaal Bowman, was defeated by a democratic challenger, that would be George Latimer. And by the way, it wasn’t close.

Now here’s what’s important. Jamaal Bowman is a member of the squad. Jamaal Bowman is one of the most liberal members of Congress. He was and then wasn’t, and now is again officially affiliated with the Democratic Socialists of America. He identifies as a socialist. And Jamaal Bowman has been very well known as a figure behind critical theory, you just go down the entire thing, every ideology. But what came to light at the present moment is his solidarity with the Palestinian cause and his enmity with Israel.

Now, he did other things. For instance, he pulled the fire alarm during a time of intense debate to the advantage of the Democratic Party, and later said he just thought it was like an automatic door switch. But later he did plead guilty to knowingly having done it. Interestingly, in more recent times, he seemed to deny that he had knowingly admitted that he had knowingly pulled the fire alarm. It’s a very bad look. So also was his socialism and his profanity used on and off of the campaign trail.

But Jamaal Bowman had been elected twice and he was elected with fairly large pluralities, but he lost this one overwhelmingly nearly 60% to 40%. And I think the issue of Israel had a lot to do with this. And this intersectionality, again, the idea that the Black Lives Matter cause is an overlay with the Palestinian cause at the expense of Israel, and he declared himself the enemy of settler colonialism, every just basic ideological argument. The point is he lost. And he might not be the only member of the squad to lose in terms of this election cycle. But in terms of the Democratic primary, this is the first time an incumbent of that stature has been knocked off. The first time a member of the squad has been primaried and successfully removed as the democratic candidate.

The big question is what this means for the party and what it means for Democrats going forward. But at the very least, it’s a shot across the bow that even in a state like New York, now there was redistricting, and there was a change in the congressional district that Congressman Bowman had held, but nonetheless, those numbers were in the end overwhelming in terms of his defeat.

So what does this mean for the future of the far left in American politics? Well, it means that you better be in a far left district if you’re going to hold too far left positions.

Now, in terms of the larger context, well, that judgment’s going to be interesting and it’s going to take some time. And at least part of it was answered nonetheless on Tuesday of this week in one district in New York.

Part V

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Parents and Families, Watch the Presidential Debate: Former President Trump and President Biden Poised to Make History Tonight

Well, okay, now tonight, the debate in Atlanta, 9 o’clock Eastern time. First of all, watch it. Our responsibility as citizens is to be well-informed. And an event on this scale in this particular context with the 2024 presidential election looming before us, I think this is mandatory watching unless you just can’t be there, in which case you better watch it later. But I also want to encourage parents and families, watch it together. This is a great civics lesson and it’s a great opportunity for Christians to gather together and think about these issues, especially a Christian family.

And I think it’s a great opportunity for mom and dad to sit down with the kids and say, especially, and I mean kids of a certain age, I’m not expecting those wearing footed pajamas to get a whole lot out of this except to know it’s a big deal, and mom and dad think it’s a big deal, and who’s president of the United States is a big deal.

But children, let’s just say of school age, and especially as they get into older grades and especially middle school and high school, I would just encourage you to watch this together and talk about what’s being debated. Talk about who is on the stage, talk about why this matters, and talk about the issues that are most important to you as you listen to what these candidates are going to say.

Now, you should expect that there is great opportunity, there’s great potential here for either candidate to do really poorly. And even as you’re looking at two veteran American political candidates, and in this case they’re veterans, so much so that there has never been such an aged race and such an aged debate when it comes to American presidential politics, but we also know the scale of the issues is really high. So I think there are two huge issues here that just about everyone’s going to be watching. Number one, do the candidates succeed in making cogent arguments? Do they hold their information together? Do they hold their attention together? And obviously right now the stakes are just incredibly high for Joe Biden, the President of the United States. He originally gave indications he did not want this debate. The former president, Donald Trump, basically challenged him to a debate any place, anytime. The Biden administration, probably because it’s significantly behind in the polls, and by the way, someone as keen in observations, Nate Silver had come back yesterday and said, “We are looking at about a five-point advantage,” he estimates for President Trump.

President Biden has to do something to change the equation of this campaign, and that’s likely why he agreed to this debate. But the stakes are really, really high, and I think especially because of the concern about the incumbent president going into the debate. But we’re also talking about a very volatile challenger from the Republican side, and we all know just about anything can happen. And so let’s watch and find out what does happen.

But then we’re concerned about the issues, and this is where it’s going to be really important, issues including abortion and the sanctity of human life, America’s national defense, understanding huge economic issues, social issues. You can just go down the list. The rights of parents. The Biden administration just indicated it is intervening again in support of transgender treatments for minors, for teenagers and children. What is that going to mean? Where will the former president, Donald Trump, come down on these issues? And both of these candidates are going to be staring at cameras and there’s not going to be a studio audience, and that’s going to be the first time that’s happened since the Kennedy-Nixon debate in 1960.

The argument can be made that few of these presidential debates have fundamentally changed in election. But then you can come back and say, “Well, 1960, 1976, 1980, fast-forward and in history,” and you understand, “Well, at times, they really have made the difference.” You can look back at an election and say, “I think it would’ve turned out differently if that debate had turned out differently.”

I think given what’s at stake and given the personalities on the stage and given the volatility of the equation, tonight’s going to make history. I think Americans are going to be talking about it for a long time. And as I said, Lord willing, we’ll be back to talk about it with you tomorrow.