It’s State Association meeting season! The Missouri State Association meets today through Wednesday. Pray for good fellowship, wise decisions, and spiritual edification.
A Supreme Problem
There’s a notable judicial ruling that came down this past Tuesday. But you didn’t hear about it. At least you didn’t hear about a very significant part of it.
The ruling was a U.S. Supreme Court (SCOTUS) ruling concerning a Texas law that prohibits companies with more than 50 million monthly active users from moderating content based on viewpoint. It’s a series of several hotly contested laws being proposed concerning the business practices of Big Tech and what, if anything, individual consumers or state governments can do to limit unfair and/or unconstitutional business practices.
Despite the larger significance of the substance of these disputes—and they are significant—I’m interested in the ruling itself. It was a 5-4 decision—with Justices John Roberts, Brett Kavanaugh, Amy Coney Barrett, Stephen Breyer, and Sonia Sotomayor in the majority. These justices’ decision will curtail enforcement of the Texas law while various legal challenges move through the lower courts.
Did you catch the Justices in the majority? Conventionally understood, it was three conservatives and two liberals (or what would be better called progressives). Conversely, three conservatives and one progressive were in the minority.
I read about this decision in one media outlet. One. I’m not saying no one else reported on it, but it certainly didn’t get much coverage (certainly no “Breaking News” graphic). Why?
These kinds of rulings defy the conventional, media-driven narratives concerning the nature of how SCOTUS carries out it’s work. It’s us versus them, good versus evil, justice versus injustice. More recently, it’s legitimate versus illegitimate.
Now I could be simplistic and assert that essentially when the Court rules in favor of a generally conservative individual, company, cause, etc., the court is labeled “increasingly illegitimate” and “partisan.” When the court rules in favor of a generally progressive individual, company, cause, etc., the court is hailed as “just” and “on the right side of history.” And this description wouldn’t really be all that simplistic based on actual, mainstream news headlines that I’ve watched on these matters for my entire adult life. However, let me be more nuanced, just for fun.
What’s Actually Happening
For at least the last five or ten years, the rhetoric surrounding SCOTUS has increasingly come to focus on whether it is a still a trusted institution in American society. Specifically, has the high court lost some of its legitimacy? This question is part query, part criticism, and part attack. Some of the commentary is focused on the process by which Presidents select and nominate justices. Some of it concerns the hearings conducted by the Senate Judiciary Committee. And some of it concerns the rulings of the Court. All three phases of the process merit attention. They’re certainly all connected. But let’s focus on the third since it’s where the rubber meets the road. It’s certainly where the legitimacy of criticisms about the first two phases can be weighed most clearly.
It’s thought that conservative justices render conservative decisions, and progressive judges render progressive decisions. While there is obviously a correlation between judicial philosophy and judicial outcomes, the line connecting them is often more jagged than straight. In other words, justices aren’t automatons, as David French often says. They have deliberative processes which they work through. They can be persuaded by their peers on the bench, and even occasionally their clerks. They can even change over time, much to the dismay of those who vote for their confirmation.
From watching the news and reading publications, many do not have this impression at all. However, if we actually watch how the Court is covered by journalists (real and pretend ones), you’d think that every ruling was a 5-4 decision. While split decisions overwhelmingly receive the greatest attention, 9-0 decisions are much more common. It’s not even difficult to find this information if you look for it.
In addition, the 5-4 decisions don’t always pit the so-called “conservative bloc” versus the “liberal bloc.” Besides the decision above—a significant one given our public conversation about free speech—another recent case concerning immigration (another third rail cultural issue) created an interesting mix, putting Gorsuch in the minority along with the other “liberal justices.” The most significant recent case concerning anti-discrimination law (Bostock) saw Roberts and Gorsuch join the four progressive/liberal judges who then sat on the court. Gorsuch authored the majority opinion.
I haven’t even mentioned the actual reasoning in the cases. Sometimes it’s quite startling to see how sharply a judge of one judicial tendency will go after a similar judge in a dissent. It’s almost as if these justices have brains and emotions. Shocking.
Let’s face it: while the Court and politicians have no doubt made mistakes of various kinds through the years, much of the entire accusation of “judicial illegitimacy” is simply one end of the ideological spectrum condescending to name-calling. In reality, their rhetoric is what most endangers the legitimacy of the Court, not the Court’s decisions themselves.
Their Problem or Ours?
Journalists who put the camera on protestors in hearings more than those asking the questions make the Court seem illegitimate. Honestly, why the heck would the public be allowed inside the room to begin with? How does that help? Are televised hearings insufficient to promote transparency?
As a matter of policy, sports networks turn the camera away from protestors who run onto the field during games. It isn’t just because they’re often naked either. In addition to the threat of jailtime for such offenses, they want to further disincentivize that kind of conduct.
Senators who constantly question the Court’s legitimacy during a hearing and every time a ruling is rendered that they disagree with creates the perception to the uninitiated that the Court isn’t legitimate.
When more time is spent defending the rights of protestors at the private homes of sitting justices in the process of making decisions than investigating whether actual laws concerning such actions are being broken, we delegitimatize the proper legal processes that lie at the heart of the entire conversation.
Remember the Latin background to the word legitimacy. Essentially, it means “lawful.” In modern times “legitimate” has come to perform some extra semantic work, conveying ideas like fairness or respectfulness. It seems to me that the entire idea of laws and their interpretation should not only be handled with seriousness, but spoken of seriously as well.
Instead, we have ongoing efforts by prosecutors in progressive municipalities to say how they don’t intend to enforce abortion laws should the leaked opinion about Roe and Casey stand. What message is that sending? We will only enforce laws with which we personally agree. So much for legitimacy! So much for the cries about “our democratic institutions and norms.”
Chief Justice Roberts provided a memorable analogy during his confirmation hearings about the work of a judge. He likened it to an umpire simply trying to call balls and strikes. Wouldn’t we be suspicious if an umpire always sided with the home team on bang-bang plays? Wouldn’t we be suspicious if he always sides with the hitter, not the pitcher, or vice versa?
We’ve come to a place where anytime these nine umpires render a decision that works against “our side” people immediately claim that the process must be inherently unfair or even rigged by partisan actors somewhere along the lines. What if the process is, for all its weaknesses, mostly working? What if the Court isn’t perfect, but legitimate? In other words, the law was followed as the majority opinion showed?
Why Christians Should Care Uniquely
Like it or not, the church was designed to be an institution of discernment. Jesus entrusting the keys to the kingdom to the apostles and subsequent followers implies as much. In an analogous sense, the church’s reputation and credibility is delegitimized when Christians themselves speak in negative, critical, and factually untrue ways about former churches, church leaders, members, and matters of Scriptural interpretation.
I fully recognize that the church has the same problem, in some sense, that the Court does: sometimes we will strenuously disagree with what is decided. Sometimes these decisions strike at the very heart of our values and convictions, and other times they’re matters of prudential judgment or opinion. We need discernment to know the difference!
And while there are countless differences between how Christians should view SCOTUS and their local church, I want to conclude with one parallel. Careless, biased, impassioned airing of grievances more often prejudices others against the institution we’re criticizing rather than doing anything to bring actual reform.
Be careful not to throw around words like “just” and “unjust” or “legitimate” and “illegitimate.” Instead, thinking in terms of balance, consistency, logical soundness, and prudence will help us better arrange our criticisms and concerns and promote constructive conversation.
Currently Reading:
Jon Krakauer, Into Thin Air: A Personal Account of the Mount Everest Disaster
Quote of the Week:
Family is the home of tradition, the place where we learn to live beyond ourselves in a story of indebted responsibility to the past and in careful stewardship of the future. Family is where we are formed as proper individuals--neither atoms of libertarianism nor clients of the state. The struggle for family and its proper liberty and responsibility, I believe, is in its early days, and the corporations, think tanks, foundations, elites, and agents of government who supported abortion rights will, I think, be unfriendly to parental rights. The right to life bears with it a responsibility to rear and educate that life, and the rights of parents must be protected… (R. J. Snell)