Tuesday, October 8, 2024

Part I

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Worldviews in Collision Come Before the Court: SCOTUS Takes Up Major Cases on Transgender Treatment for Minors, Minors Accessing Pornography, Guns, and More

Well, yesterday began the new term of the United States Supreme Court. Now, that’s not a political term, as is the case with our elected representatives and the executive branch. It is instead the term in which the court is seated and hearing arguments and eventually deciding cases. This goes back to the fact that from the earliest period, in the experience of the US Supreme Court, the court has taken a summer recess, and that recess means that there is no public action, there’s no public seating of the court during that time. And then the court comes back for a very intense period of time that takes us all the way into the early days, sometimes of June, with major decisions handed down toward the end of the term. Why is it that way? Well, it is because the court takes some time to develop those decisions. Oral arguments, in many cases, are heard much earlier, such as some that will begin even this week.

But even as there will be some rulings, of course, that will be released earlier in the court’s term, and there will be even some major decisions that might be released when the justices are ready to take that action, the reality is that the biggest cases with the biggest headlines are likely to come, just about the time we’re ready to congratulate each other on reaching the summer. But let’s just do a little bit of civics here for a moment. Let’s remind ourselves that our constitutional order is based upon three co-equal branches of government.

And so we have the legislative branch, which means Congress, both houses, the Senate and the House of Representatives. We have the executive branch headed by the President of the United States. And then we have the judicial branch. And this is where many people don’t understand that the Supreme Court is not a court like other courts. It is, by definition, a court of appeal. It is a court of final appeal. And so by the time a case reaches the US Supreme Court, and there are some cases that basically, in our constitutional order have to get that far, the majority of the cases that the court will hear are those the justices decide to hear. At least a sufficient number of justices decides we will hear this case, and thus the judicial branch operates independently. But of course, it is deeply intertwined with the other two branches of government. And how does that work?

Well, just consider that the court, in terms of the people who are sitting on the court, the justices on the court, every single one of them has been nominated by a President of the United States. Without that nomination, no one gets to the Supreme Court. But that nomination is not sufficient. The United States Senate must confirm that nomination or appointment in such a way that the executive branch and the legislative branch has been involved to a certain degree, the executive branch initiating, and then the legislative branch and the Senate confirming. And then of course, you have that third co-equal branch. But it doesn’t replace itself.

And then it works the other way as well. You have the Supreme Court of the United States sometimes issuing final rulings on issues in which a president or the executive branch would be directly involved. Regularly and virtually every session, the Supreme Court has to pass rulings, either interpreting or ruling on the constitutionality of items of legislation, laws, or regulations put in place either by the legislative or the executive branch. And in all those cases, you also have further involvement. For example, the government’s case is argued by an individual, an officer of the court known as the Solicitor General of the United States.

The solicitor general doesn’t appoint herself or himself. The solicitor general is appointed by the President of the United States, and thus, that person shows up in court making the argument for the government of the United States, and that once again underlines the importance of a presidential election because it is the president who will have the power to appoint that solicitor general. And it is the president’s administration who will often make the decision as to what the government’s position is in a case. And wow, is there an illustration of that coming in the court’s new term.

I think most Christians will be particularly interested in a case that is known as United States versus Skrmetti. This is known as case number 23-477. It has to do with the challenge to a law in Tennessee that prohibits medical practitioners from cooperating with or supervising through medical practice what might be known as gender reassignment, or in the parlance of the LGBTQ movement, “sex confirmation” surgery or procedures. In the case of the state of Tennessee, the procedures are ruled outside normal and acceptable medical practice when it comes to minors, which is to say those who are children and adolescents not yet having achieved legal adulthood. And so this is a protective law. It’s a protective law that predictably was challenged by activists for the LGBTQ movement. And in this case, that includes some parents who are saying they’re representing children who should have access to what they define as medical treatments that they should have and it should be allowable in the state of Tennessee.

Now, when the Tennessee legislature adopted this law, about half the states, by the way, have a similar kind of law that tells you, again red and blue America. In about half the states, there is no law preventing this kind of medical practice on minors, and about half the states, there are such laws. And so this is going to be a precedent-setting case, or at least that’s what the LGBTQ movement sincerely hopes, and the Biden administration with it, that’s the point. I mentioned the Solicitor General of the United States, the influence of a presidential administration. When you had a district court, a US Court of Appeals, that’s a federal appellate court, when you have a conflict in the ruling between those two courts, almost inevitably, a case like this goes to the Supreme Court of the United States.

A sufficient number of justices said yes. They granted what is known as a writ of certiorari, and thus, the case is going to be heard by the US Supreme Court. And the Biden administration is very much in this, making the argument. And that is why, I just want to remind you, with the presidential election coming, who sits as President of the United States has an incredible effect and impact on cases like this.

So let me just refer you to the front page of the New York Times, a story that headlined yesterday, “For Now, Term Is Shaping Up As a Mild One,” that’s about the Supreme Court. By the way, the article really doesn’t match the headline, but that’s another story. But in terms of this case, this is what the New York Times tells us, “The Tennessee law prohibits medical providers from prescribing puberty blockers or hormones to treat the psychological distress caused by incongruence between experienced gender and that assigned at birth.” Now, that’s an awfully, well, complicated sentence, but it’s an illustration of the fact, this is an awfully complicated issue in terms of even how just to describe it. That’s a part of the problem here.

Here’s the next sentence. “The Biden administration argues that the law violates the Constitution’s equal protection clause.” So President Biden had the power to appoint the Solicitor General of the United States, and the Justice Department under the Biden administration’s leadership has the right to say this is the position of the United States of America on this case. And I’ll just say, the position of the United States of America is profoundly the wrong position in this case. And I at least hope, I dare to believe, that the vast majority of parents in the United States would agree with me on that.

Okay, so let’s just look at the argument that’s going to be made. So you have the parents of some young people who have been denied, what is called here, gender confirmation, affirmation, or gender reassignment puberty blockers. They have been denied them. And these parents, you could say the parents and the children in some sense, are suing, saying that it is an unconstitutional form of discrimination. Where’s the discrimination? Well, these very drugs could be used and are routinely used when needed, to assist a young person going through puberty to do so successfully in a case of a hormone imbalance. But that means that a boy going through male puberty can be assisted by these hormones prescribed by a physician, if indeed there’s a problem with this turning out evenly and successfully. The same thing on the female side.

So in other words, these drugs were not developed for the transgender agenda. These drugs were developed to help young people successfully get through puberty, a boy going through male puberty, and a girl going through female puberty. That’s the intention. And thus, the Tennessee law says you can use the drugs that way. You just can’t cross the lines.

And that’s where you have the argument coming from the parents or the families in this case. And you have the Biden administration joining the argument saying, that’s a form of discrimination. It’s a form of discrimination, they are arguing, for transgender teenagers or young people not to have access to these drugs, even when we know the drugs are going to be used for the opposite of at least the original intention in the development and prescription of these drugs. We’re looking at a truly bizarre moment in American history, but we’re not looking at it somewhere abstractly in the future. It’s coming right now. It’s one of the major cases coming in this term of the United States Supreme Court.

Now, there are other cases, by the way, related to young people, and one of them has to do with a case that originates from Texas, where the state of Texas has adopted legislation, saying that the purveyors of internet pornography, I’m stating this very carefully, the purveyors of pornography on the internet must prove that they are not granting access to anyone who is not yet legally an adult. Or to say it another way, they have to block underage persons from access to these pornographic sites. How would you do that? You’d have to have some mechanism for identifying a user on the internet as being confirmed, as being an adult with some form of confirmation about this. Well, now you have the pornography sites and you have some people who evidently are using the pornography sites who say they believe that this amounts to something that is illegal, unconstitutional, breaks federal laws and regulations, because it requires some maintenance of a site in which personal information is kept in a way that is linked to the use of pornographic materials.

Okay. Welcome to America in 2024. You have the pornography industry, and you have some, for that matter, say libertarian interest in this who just don’t want the government involved at all, and think there should not be any laws of limitation of this sort when it comes to pornography. And you also have some of the users of pornography, you have both sides of the equation here, who are arguing that they should not be required to give personal information that could be maintained or, for that matter, hacked related to the use of pornography. Really interesting situation here. I would say it takes at least a little nerve to be one of the persons making that argument. But the fact is, it’s an argument, and it’s a case that will come this term before the Supreme Court of the United States. And I can just say in advance, the arguments made before the court in this case, as in the previous case, are going to be a fascinating display of worldviews in collision. We’ll talk about them when they happen. By the way, other cases coming before the court are likely to involve such things as guns or parts of guns, ghost guns, at least two different cases having to do with guns are coming before the court.

Part II

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Radical Change Packaged as Reform: Why the Left is Seeking to Redefine and Redesign the Supreme Court

But here’s what I want to say. You have expectation coming from the conservatives and the liberals in our society about the Supreme Court. Now, the liberals hate the court as it is currently constituted. They hate the fact that there are six Republican nominated justices, more conservative justices. They can outvote the three more liberal justices. And let’s be honest, looking to the November presidential election, a big part of it, especially I think on the Left more than on the Right, I’m actually concerned about that, I think a lot of the energy really is about the Supreme Court of the United States, especially given the fact that the Dobbs decision handed down by the Supreme Court in 2022 reversed Roe v. Wade. And so on the Democratic side, there has been an open call basically to overcome this decision handed down by the justices.

But there’s more to it than that. I think one of the problems you have on the left is that they actually hate texts. They hate texts that are limitations of words such as the precise set of words that come together in the Constitution of the United States of America. And so what they want is the court to legislate. What they want is the court to adjudicate according to the justices’ own views on these matters. And by the way, if the justices are liberal, then hey, it’s all to the better from the liberal perspective. And that’s exactly what they got through about 20 to 30 years of the court’s jurisprudence, going from the 1950s into the 1980s. Only then did conservative presidents begin to appoint more conservative justices. And of course, the big argument was over, what should determine these cases? Should it be the text of the Constitution? If you believe that, you’re a conservative known as a textualist. Or should it be the justices’ view of what will lead to the best kind of society? That’s the progressivist understanding of how the court is to interpret the Constitution.

And the court was largely in liberal hands for about 30 years. And now, well, the liberals are very, very angry about the direction of the US Supreme Court. So one of the things you see right now, in just about all the major media, are arguments about how the court has lost credibility. Alexander Nazaryan, writing for The New Republic, offers an article this week with the headline, “The New Supreme Court Session Opens Monday, It Will Not Be Pretty.” In this, we read, “The new Supreme Court session will begin on the first day in October. The justices take their seats,” and they will do so, “with ever fewer Americans impressed by the black robes, the Vatican-like intrigues taking place in the marble readout on First Street, the authoritative tone of increasingly partisan decisions that are almost impossible to reverse, no matter how infuriating or inexplicable.” Now, that’s the argument coming from the Left, and I’ll just tell you that language indicates the fury.

Nazaryan goes on to say, “According to Gallup, only 24% of Americans who are or lean democratic now trust the high court, a drop of 60%,” That’s italicized by the way, in case you missed it, “since the late 1990s.” “They may largely have to do with the demise of Roe,” that means the precedent back in 1973 legalizing abortion, “but there is a broader institutional collapse that cannot be chalked up to abortion alone. And it is all the court’s own doing.” This article is pretty critical of the nation’s high court, particularly critical, let’s be honest, of the conservative majority on the court.

And so you have statements in the article like this, “The growing power of the court, and the conviction of many justices that they are the foremost custodians of the nation’s founding principles has led to a crisis of judicial supremacy.” And the article goes on to cite Georgetown law Professor Brad Snyder as saying it, making that charge as far back as 2022. The article continues, “Regardless of who wins in November’s presidential race, the Supreme Court will continue to remake vast swaths of American life according to its own hermetic principles, while the rest of us, remembering those long ago civics lessons about three co-equal branches of government with checks and balances, will wonder how we got here.” Well, that’s insane. I simply say that statement is absolutely incoherent. It can only be made by people on the Left who are just so accustomed to having the Supreme Court rule their way, they don’t know what to do with the Supreme Court that doesn’t, or at least a Supreme Court majority, I should say, that doesn’t.

But here’s where you need to go back to where that paragraph began. “The growing power of the court,” and listen to these words, “and the conviction of many justices that they are the foremost custodians of the nation’s founding principles, has led to a crisis.” Now wait just a minute. Isn’t that exactly what the founders intended when it came to the Supreme Court of the United States, and the fact that it is to rule according to the Constitution? Isn’t it something they should seek to be, when they are basically here criticized for seeing themselves as “the foremost custodians of the nation’s founding principles”? I think, honestly, that’s what the vast majority of Americans just assume the Supreme Court is there to do.

But here’s where you have the collision of worldviews, and that collision happens regularly at the Supreme Court, because there are people arguing, “I want this. You find some way to make it happen,” and others saying, “Here is the law. Here is the Constitution. Here are the limitations. Here is the authority in the text.” And that’s what’s frustrating the Left and driving them into absolute fits of consternation. They know this is a long term problem. And that’s even indicated, where we are told that basically, what you expect from the court this session is pretty much what you expected from the court last session because, why, these justices are still there and the conservative majority is still there. And even if a Democratic president is elected and that president gets to make nominations to the court, well, this coming session is going to be with the justices you’re looking at right now this week on the court.

Now, I think most Americans would be interested in a statement made by a Supreme Court scholar at the University of Nevada-Las Vegas, he teaches law there, and that’s David Orentlicher, identified as an expert on the Constitution. And he says, concerning the courts in this article, “Courts are supposed to be neutral. And it’s not a neutral court.” Speaking of the current Supreme Court, “Judging shouldn’t work like politics.” Well, there’s a sense in which, at least in theory and in principle, he’s saying something that’s exactly right. The problem is that when your politics now reach the issue of, say, biology, as in male and female, and when you have a constellation of issues that are coming, and you have a conservative set of principles and a liberal set of principles that are directly now in collision, well, the court can’t evade the fact that there are political consequences, and even political origins to the cases that come before the court.

And I’ll simply say, looking at the history of the United States of America, it is true that in the current era, it’s more contentious than at some points in the past. But let’s face it, most Americans know so little about the court’s history, they don’t understand that a lot of these issues have come up before. A lot of these accusations have been made before. And you know what? Through it all, the Supreme Court of the United States sits in that marble palace as it’s known, and does its work. And it does so, and in a way that’s distinct from the other two branches of government because those justices are not elected. It does so with a certain protection against the politics that rule in the Capitol and in the White House.

But there’s another part of this that turns out to be mystery, and that is exactly how the court works when the justices are alone in a room, making the arguments about these specific cases. With no one but the justices themselves, knowing what in the world they say, before they make their statements known in the opinion of the court, the ruling of the court, and in whatever other opinions the justices release what they say to each other, we simply don’t know.

Part III

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Do Californians Want More Law and Order? Major Ballot Measure in California Appears Set to Pass by Big Margin, Even as Opposed by the Governor and Legislators

But finally, for today, as we are talking about matters related to the law, the Los Angeles Times, I’ve already mentioned this week, I think it’s a very liberal paper, in a state that’s known for its liberalism and for the fact that the Democrats basically dominate throughout the state government. But one of the things about California is that Californians sometimes, as citizens on matters of substance, get to say what they think. And it’s often not what the politicians want them to think. And that has been famously true in California with propositions having to do, for example, with taxes and other issues as well. But now this year, one of the propositions as they are known, coming before the voters in California, is known as Proposition 36, and it requires the state government to get tougher on crime, in particular, to get tougher on felony crimes. And guess what? The governor opposes it. Governor Gavin Newsom, very liberal, he opposes it. And it appears that a majority in the General Assembly oppose it. But guess what? The voters of California evidently really liked the idea of having stronger laws against crime.

As the Los Angeles Times reports, “A solid majority of likely California voters support Proposition 36,” a measure, “that would impose stricter penalties for retail theft and crimes involving fentanyl, that according to a new University of California-Berkeley Institute, a governmental studies poll, co-sponsored by the Times,” “imposing harsher punishment on repeat offenders drove that support, far outweighing voters desire to increase overall prosecutions or deter future crime.” The issue is really interesting, and it does appear that Proposition 36 is going to pass. The newspaper acknowledges that almost all Republicans are going to vote for it.

Now you say, well, that’s not enough in California. Yeah, but it turns out that a very significant number of Democrats are voting for it as well. And why? It is because they don’t like crime. Why? It is because they do not believe that more permissive laws, and again, we’re not talking about misdemeanors here, we’re not talking about jaywalking, we’re talking about major retail theft and the use of drugs and involvement in the industry of fentanyl. And you look at that and you recognize, well, years and years of permissive laws and permissive prosecutions have led to the fact that you have now very, very ingrained patterns of retail theft in a state like California. That means that you can come in some stores and basically be able to get just about nothing off the shelf because everything is locked up for reason.

But there’s a line in this LA Times article that just really, in world view terms, does encapsulate something. One person looking at this, a political observer said, “Speaking of crime and punishment,” “there are things voters have on their minds that apparently the politicians have underestimated.” Okay, that’s just gold. There are things voters have on their minds that apparently the politicians have underestimated. And this just gets to the fact that people do vote based upon their own perception of the moral context. The moral context is, people think there is way too much crime, that the laws and the prosecutions have been way too lenient, and that it makes their community less safe and less attractive. And so they get to vote, and guess what? They’re about to do that. The vast majority of them, even according to the LA Times, they’re going to vote for Proposition 36.

But in worldview analysis, just one final point today for The Briefing, when you look at some of the cases coming before the Supreme Court this term, some of them are genuinely perplexing. You look at the issues such as transgender medical treatments for teens. I can say I think that issue’s very clear. But when it comes to some other issues, I just want to acknowledge, it would take something like the wisdom of Solomon to figure some of this out.

Let me give you one of the big cases coming before the court. It comes down to this. Is a gun a gun when that gun is a kit, it’s made up of a bunch of parts? Is that still a gun? So does a restriction on guns also refer to a kit or to the parts? Well, how many of those parts would be required to be in a box, say, before you call that a gun or a potential gun? I’m not saying I have any strong feeling as to how this should be adjudicated. And at this point, at least the issues are not well-defined even as they will be presented before the court. But the bottom line is this, it underlines the fact that our human courts operate on the basis of a human wisdom. And by definition, that means it is a finite and limited wisdom. There are issues that come before human courts. This is true in, by the way, both the text of the Old Testament and the New Testament, in which it is very difficult to know exactly how a court should rule.

So sometimes, we look at a case and we say, we know exactly how the court should rule. We know exactly how this should be judged over against the Constitution, how this should be judged in terms of the arguments that are presented. But in some other situations, it’s just a reminder to us that, at times, the limitations of human justice are made absolutely, transparently clear. And by the way, I use the phrase that this would require the wisdom of Solomon. And if that doesn’t click in your memory, you need to go look at the Old Testament and remind yourself why we use that phrase.

The headline in USA Today finally says, “Tough Cases Ahead For Justices.” Let’s just remind ourselves that’s why we have courts, and the reason we have a highest court, we even call the Supreme Court, is because there are some cases that eventually have to be heard by that court, which, at least for a time, has the last word. It’s also important to recognize that the Christian worldview applies directly to questions of law, given how much of the Old Testament and the New Testament is concerned with how law came to be, who ultimately is the author of law, and how laws are to be rightly constructed and righteously applied.