A Christian Response to the Surpreme Court

   

     In 2 Samuel 6, King David has a wonderful, god-honoring goal: he wants to bring the Ark of the Covenant (the symbol of God living among his people) to the new capital of Jerusalem. He gathers the Israelite people and throws a parade, loading the Ark on a cart and surrounding it with musicians and dancers. At a rocky point, one of the young men walking beside the cart reaches out to stop the Ark from falling off and is struck dead. God had left clear instructions how the Ark should be transported--- on the shoulders of six priests who had purified themselves. It was never supposed to be transported by a cart or touched by a common man. The consequences of David doing the right thing in the wrong way was a man’s death. In Scripture, God expects his people to do the right thing with the right methods. We are to speak the truth (the right thing) in love (the right way) (Eph 4:15). A large part of how Christians view the current debates over the Supreme Court hinges on how much credence they give this biblical principle.

          Let’s go back to Civics 101. Lesser courts (everything except the Supreme Court) are tasks with making sure laws are enforced equally and fairly and that laws are consistent. They are guided in this through three means. First, the actual laws themselves. For example, a city cannot pass a law that allows people not to wear seatbelts if the state law requires it. Second, they are guided by legal precedent. When there is confusion as to how a law should be interpreted, judges are to look at past cases and the decisions that past judges and juries have made. The higher the court precedent or the more cases that agree, the more weight these bear. Finally, the courts are guided by the highest law: The United States Constitution. Any lesser law can be struck down if it is considered in violation of this highest law. This is where the unique role of the Supreme Court comes in. Since 1803 (Marbury v. Madison), the Supreme Court has been the interpreter of the United Sates Constitution. They do not do this in isolation; however, they are expected to look at current and past laws to interpreter the Constitution for each generation. A lot of talk focuses on “conservative” and “liberal” judges, but judges are not measured by the same continuum of political issues that we typically mean when we say those words. Instead, judges are measured by how liberally or conservatively they interpret the Constitution and precedent.

          Late Supreme Court justices and opera-loving-BFFs Anthony Scalia and Ruth Bader Ginsberg represented the two extremes of these interpretations on the Supreme Court for almost two decades. Scalia was a conversative (a literalist) who believed priority should be given to what the authors of the Constitution originally intended it to mean. Ginsberg was a progressive who placed emphases on the Constitution as a living document which needed to be adapted for each generation. Both agreed that the opinions of the original writers mattered, that precedents mattered, and that the Constitution had to be contextualized, but they disagreed strongly on priority among these. Although that never interfered with their friendship.

          Both Scalia and Ginsberg were comfortable to a certain extent with what is called judicial activism where laws are struck down based on principle rather than their clear violation of a higher law or overwhelming precedent. This is pejoratively called “legislating from the bench” and is balanced by judicial restraint. As represented by current Chief Justice John Roberts, judicial restraint is seen as a return to earlier (pre-1960’s) legal function where justices almost never challenged laws. For these judges the how of a law is as important as the what and only the legislative branch should be making laws. Even justices who are willing to practice judicial activism normally view their ability to do so as within the limits of existing laws.

          All this is background to this statement: The Supreme Court should not (and probably does not) have the authority to outlaw abortion. At the time of Roe v. Wade, 17 states already had legalized abortion and 13 others had it legalized in certain circumstances. The Supreme Court was asked to weigh in on if--- with so many states legalizing abortion--- could Texas still prohibit it? It was a valid case where laws were in conflict and the Supreme Court was needed to step in and clarify them. There was a degree of legislating from the bench in this decision, but it was consistent with many existing laws and legal precedents. States cannot have laws on issues of personal freedom that disagree. And, no, this is not a state’s rights issue. The southern states trounced states’ rights to have different interpretations of issues of freedom with the Fugitive Slave Law in 1850 and the Dred Scott case in 1857. While these exact cases were nullified by the Thirteenth Amendment, the precedent has stood. While I obviously believe that they made the wrong decision at a time when the country was at a crossroad, Roe v. Wade was a legitimate legal decision.

          That is important when you talk about it being overturned. The Supreme Court is extremely cautious when it comes to overturning its own decisions, especially if a justice believes in judicial restraint. A decision must be proven to be either extremely unconstitutional, a bad decision (from a technical/legal standpoint) or be invalidated by a legislation decision to be overturned. Right now, the three most recent “conservative justices” are all judicial restraint justices. Which means, whatever their personal beliefs, they are not likely to overturn Roe v. Wade. (The most recently appointed justice Brett Kavanaugh outright said he will not vote to overturn.) Why? Because at this point, there is almost fifty years of legal precedent supporting it and it is the law of the land in every state. To change this with a Supreme Court decision now would be the epidemy of legislating from the bench. The how of how something is outlawed is as important to them as the result.

The very language of “outlaw abortion” is a hint that the Supreme Court should not be responsibility to deal with abortion. The legislative body (Congress and State legislators) should bear the responsibility for this. And since this is an issue of personal freedom where states’ laws should not be contradicting, this really is the responsibility of Congress. As it was when Congress banned partial birth abortion in 2003 and the Supreme Court upheld it in 2007 because this was the legal, constitutional way to make this change.

          Disregarding the right way to go about something typically backfires on those who take the shortcut. Four years ago, Republican senators blocked President Obama’s constitutionally given right to fill a vacant Supreme Court position when he still had a fourth of his term (11 months) left because they believed he would appoint a “liberal”/ “pro-choice” justice. “Cheaters never prosper” in this case because the justice (Neil Gorsuch) they got by playing dirty is a judicial restraint judge who has consistently voted to uphold Roe V. Wade. And now, they are dealing with the fallout of cheating the system when a seat came open with 5 months left in President Trump’s term.

          What judicial restraint justices remind us of is that the how matters. We cannot become so focused on winning an issue that we disregard who we are as a constitutional democracy or who we are as Christ-followers. The ends do not justify the means. As Christians we play by kingdom rules--- love thy neighbor, seek justice, love mercy, forgive as we have been forgiven, do unto the least of these. We cannot disregard these rules in the name of expediency or practicality or because the other side does. Some changes may take longer this way, but they will be more permanent. It may take more work on our part, but it will cost us less in the long run. And most importantly, when we stand before God at the end of it all, we will be able to say that we ran our race with diligence and obedience to the truth (Gal 5:7; Heb 12:1).