Supreme Court

This tag is associated with 3 posts

Oral Arguments in “Dobbs v. Jackson Women’s Health Organization”

I just listened to all 2 hours of the recorded oral arguments of “Dobbs v. Jackson Women’s Health Organization” that happened today. The case is a major one in which the state of Mississippi is explicitly asking the Supreme Court to overturn Roe v. Wade. I found it deeply interesting and I would recommend those who are interested in the topic give the whole thing a listen rather than merely searching for soundbites or summaries.

I am not at all a legal scholar. Looking in on this from the outside, it’s clear that there are many different factors going into the arguments here. I want to make my own comments, and leave them here simply as someone with an interest in the case and who’s seeking to learn more.

I have become increasingly convinced that the topic of abortion frequently leads to so much heat in discussion that it becomes nearly impossible to have a reasoned conversation about it. Listening to these oral arguments help to put this in perspective, because some of it showed how such a reasoned discussion could take place.

Mississippi’s argument largely seems to be based upon the notion that because the issues is contentious, it ought to be left to the states or “the people” to decide. This very reasoning was used at multiple points in answers to questions. I find this deeply disturbing, because it suggests that any issue that is not explicitly outlined in the Constitution is beyond the purview of the Courts so long as it is politically contentious enough. On the flip side, I have some sympathy for the question of whether contentious issues ought to be decided through legislation rather than through courts.

The questions posed to Elizabeth Prelogar, U.S. Solicitor General who was answering questions in behalf of Jackson Women’s Health Organization, focused on two lines of reasoning. One, the question of “viability” as a “principled line” to be drawn for when abortions could be considered constitutionally defended or not. I found the question-and-answers centered around this to be especially important. Essentially, Prelogar noted that the Court has to establish a line and has done so with Roe v. Wade and Casey. Because that line is established, the argument goes, the precedent is there and it allows for a fairly clear way to delineate when it is or is not Constitutionally protected.

Some questions pressed on this definition of viability, because the question then becomes whether that line of viability could move. Justice Sotomayor noted that the scientific opinions related to fetal pain were controversial enough to be largely discounted in moving the line earlier. Prelogar argued for viability as a line because earlier lines would disproportionately impact classes of women based upon various reasons (eg. wealth, access to health care, age, and the like).

The second line of questioning posed to Prelogar was centered on the history/precedent of the cases and why and when something like Roe v. Wade could be overturned. Justice Sotomayor noted that the notion that the court could overturn something based upon political shifting winds would deeply impact the credibility of the court going forward. Other questions posed to Prelogar pursued various reasons a case might be overturned, and whether a case could be overturned simply because it was seen as egregiously mistaken in its reasoning to begin with.

I thought here it was interesting to see that Prelogar shifted to arguing that the Court has to act upon the lengthy precedent on Roe v. Wade and Casey. To overturn them, there has to be some overriding reason to do so, and because the arguments from Mississippi appear to be the same as or similar enough to those arguments heard in prior cases that they don’t actually bring a compelling reason to overturn prior cases.

My own personal takeaways were that I thought each side made several compelling points. For one, viability as a standard seems somewhat shifty. As medical science progresses, viability can continue to be pushed further in time such that 15 weeks or earlier could be medically viable. That would seem to make this whole challenge a moot point. As I understand it from some of the arguments presented here, though, viability as defined in Roe v. Wade was based upon trimesters, while Casey made it into a more tenuous “viability” standard unbound to trimesters. That means that, theoretically at least, medical technology could push this line back. If I were on the Supreme Court–and there are very good reasons why I’m not–my concern with this specific case would be centered around the question of how we can have a Constitutional right that is in principle able to shift around with medical technology.

Second, it does make me very nervous that, at least according to one of the people (I’m sorry, I forget which) discussing this case in oral arguments today, Mississippi’s legislature both in the House and Senate explicitly had someone saying they’re bringing this case now because of the changed dynamics in the Supreme Court. I believe it was Justice Sotomayor who pointed this out, and it does deeply concern me that lawmakers would see apparently changed political dynamics on the Supreme Court as an in to change certain policies. It seems obvious to some extent that that might make a difference, but to make it explicit essentially says that the Supreme Court of the United States is a partisan organization which will submit to the changing whims of the political times so long as a President can get their favored partisans in the Court. That ought to be deeply alarming for any American. If it is true that the reason to challenge things in the Supreme Court is due to its partisan nature, that effectively turns the Court into a tool of political manipulation and removes any semblance of legal objectivity from the Court’s decision making processes. That in itself would be disastrous.

If you’ve read this far, I appreciate you taking the time to do so. Please let me know your own thoughts in the comments. I have many other ruminations, but articulating them right now feels beyond me.

Policy, or, Why I’m not voting for Donald Trump

white-houseI try to avoid straight-up politics on this blog, but I think it is important to discuss the election this year. Too often, as I’ve voiced my intention to not vote for Donald Trump, I’ve been told that we aren’t voting for a moral leader, but a President or something of the sort (a President, not a pastor… however you want to put it). But apart from the fact that separating morals from policy is impossible, the fact is that the reason I’m anti-Trump was, from the beginning, a matter of policy. Here are just a few of the policy-oriented reasons I’m not voting for Trump. Period. And they’re based, in part, on conservative values.

Religious Liberty

What is one of the most important thing for most conservatives? Freedom of religion. I find this a paramount part of our country’s greatness, myself. The fact that you may freely believe and practice your faith, whether it be Pentecostal, Calvinist, Lutheran, Hindu, or Buddhism is an ideal that is beautiful and necessary. Conservatives across the board point to the importance of religious freedom. Thus, with conservatives telling people they ought to vote for Trump based on policy, it is worth asking: do Trump’s policies support religious liberty?

The plain and clear answer is: no, obviously.

Think about it. Suppose Donald Trump had come out saying “We need a total and complete ban of all Christians entering the United States.” How do you think conservatives would have reacted? As they should have: by exploding. Such a statement would be a direct violation of religious freedom. It would be seeing someone’s faith as the sole reason for denying them entry into our country. But because he said it about Muslims, suddenly it’s seen as okay. Here’s the thing: religious liberty is, and always has been, religious liberty for all religions. Yes, if someone decides that their religion is to kill everybody, that would be a religion that could not be allowed liberty, but Islam is demonstrably diverse, with several distinct factions and offshoots, many of which denounce violence in the name of their faith. It’d be like banning all Christians because of the Branch Davidians or banning all Lutherans because the BTK killer happened to be, ostensibly, Lutheran.

But the point of this is not to debate whether Islam is violent or not (it’s not, inherently; with 1 billion Muslims in the world, if Islam was automatically violent, why are not all of these 1 billion Muslims killing people?). The point is that Trump explicitly made a statement in which religion was the single reason for exclusion from our country. That is a terrifying reality to think about, because as many conservative beliefs begin to be seen as oppressive, it is not very hard to see how conservatives could be next on the list of those banished from the country.

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
-Pastor Martin Niemöller speaking of the Nazis

*Note: I realize Trump has somewhat scaled back this talk to having “extreme vetting,” but it is important to take into account the fact that his initial position of simply banning people based on religion.

Freedom of Speech

Freedom of speech and the freedom of the press stand alongside religious freedom as some of the most important parts of our constitution and, frankly, our country. Yet, once again, we find that Donald Trump is no defender of such a freedom–a freedom that is put forward by conservatives as vastly important.

Donald Trump, frustrated with the media coming after him, Tweeted his frustration suggesting that “It is not ‘freedom of the press’ when newspapers and others are allowed to write whatever they want even if it is completely false!”

Um, yes it is, actually. That’s one of the things freedom of the press explicitly permits. Moreover, Trump has suggested libel and slander laws ought to be opened up to allow him to more easily sue and defeat others who speak badly of him. This is a terrifying reality in which we have a candidate who doesn’t respect freedom of speech because he doesn’t like what others say about him.

So here we have a Presidential candidate who believes it is acceptable to suggest changing the Constitution because he doesn’t like when people speak ill of him. I think that’s a real problem, and would suggest freedom of speech is yet another policy that should have conservatives fleeing from Trump, not flocking to him. For more on this topic, see this article from Red State, a conservative web publication.

Fiscal Policy

“The free market works–it just needs leadership, not dictatorship… We need legislation that gives American companies the tax priorities and financial support to create more of their technology and redirect more of their manufacturing here at home.” –Donald Trump, “Crippled America,” 81, 86-87.

“Nobody can build a wall like me. I will build a great wall on our southern border… Construction of the wall needs to start as soon as possible. And Mexico has to pay for it… Mexico will pay for it. How? We could increase the fees on temporary visas. We could even impound remittance payments derived from illegal wages. Foreign governments could tell their embassies to start helping, otherwise they risk troubled relations with America. If necessary we could pay for the wall through a tariff or cut foreign aid to Mexico…” – Donald Trump, “Crippled America,” 23-25.

Each of these quotes demonstrates that Trump is by no means a conservative when it comes to fiscal policy. One of the cornerstones of conservative fiscal policy is free trade. Yet in the first quote, Trump encourages protectionism in economics, which is the opposite of free trade. In the second quote, he supports tariffs as a possibility for paying for his projects. Again, raised tariffs are the opposite of free trade. Moreover, Trump has been vocal in opposition to NAFTA and other free trade agreements. Each of these shows beyond any question that Trump is not a conservative when it comes to fiscal policy.

Foreign Policy

“If we’re going to continue to be the policemen of the world, we ought to be paid for it. …There is another way to pay to modernize our military forces. If other countries are depending on us to protect them, shouldn’t they be willing… To pay for the servicemen and servicewomen and the equipment we’re providing? …We defend Germany. We defend Japan. We defend South Korea. These are powerful and wealthy countries. We get nothing from them.” –Donald Trump, “Crippled America,” 32, 34.

Whatever Trump has said about nuclear missiles and the like aside, this quote shows that Trump has very little grasp of foreign policy. He sees the United States as a mercenary that hasn’t been paid. He sees our military forces as dollars and cents. More astonishingly, he sees American lives lost defending allies as price tags. How much is the life of one soldier worth? Trump would put a price on it, and then sell that to the highest bidder. I’m not making that up: just read what he himself wrote in his election book!

Later in the same chapter he asks rhetorically why we didn’t make a deal with the leaders of Kuwait “that outlined how they would pay for us to get their country back for them…” (35) before Desert Storm.

Effectively, Trump here suggested we should have extorted money from the leaders of another sovereign nation before we went into military action. Thank goodness he wasn’t in charge of our country during World War 2! We would have had to negotiate with the Allies on the price of our help before we sent our brave soldiers to the shores of Normandy!

Trump has also been vocal about his opposition to NATO, an immensely important military alliance. The dismissal of many of our closest allies by Trump, often accompanied by accusations that the United States must pay too much money, once again shows that Trump’s foreign policy is based upon nothing but the bottom line. But of course foreign policy based purely on flawed economic theory (see “Fiscal Policy,” above) is not the best way to practice foreign policy. Neither is dismissing allies as though they have done “nothing” for us (see his quoted comments above on Germany, South Korea, and Japan).

Time and again, we see Trump’s foreign policy largely can be summed up by dollars and cents. When those dollar signs are set alongside the lives of Americans, as they clearly are in Trump’s mind, there’s a huge problem with his foreign policy.

SCOTUS

Look, simply appealing to the Supreme Court as the reason to select a President shows already how broken the system is. First of all, one’s alleged Supreme Court nominee list is not a “policy,” per se, so I’m confused by my conservative friends continuing to say that policy is the reason, and then citing SCOTUS as the only reason. That said, I don’t for a minute believe that we, conservatives or not, want Donald Trump selecting SCOTUS nominees. For one thing, as already mentioned, Trump believes the constitution should serve his whims when it comes to freedom of speech. Think he doesn’t know that the Supreme Court could help him achieve that if he can appoint judges he wants? Think again.

Of course, Trump has also said his pro-choice sister would make a great Supreme Court justice. He may have changed his mind about that–and it seems some are very willing to believe anything that Trump has changed his mind on–but for conservatives, that should have warning sirens blaring at full.

This article explores this difficulty further.

Abortion

It’s no secret that Trump is repeatedly on record voicing pro-choice ideals throughout his life. Only once he began to run for President–ostensibly as a conservative Republican–did Trump begin to say he was pro-life. But time and again, Trump has been blindsided by pro-life basics. When asked about what should happen if abortion were made illegal, he waffled his answer, saying there should be “some kind” of punishment for women who have abortions. More recently, in the third Presidential debate, he botched an explanation of partial birth abortion and failed to nail Clinton to the wall for her radically pro-choice perspectives that go against both science and logic.

Let’s be honest here, anyone who is truly convinced of the pro-life position ought to be able to articulate it, right? But Trump has demonstrated time and again that he cannot do exactly that. It should be extremely easy to expose Clinton’s talk about abortion for what it is: euphemism. But Trump could just repeat what seemed a memorized piece of rhetoric.

So we have an allegedly conservative Presidential candidate who can’t even articulate and defend the pro-life view beyond some catch phrases, and who fails to press the attack against what should be a fairly easy target.

Conclusion

There are many other reasons I would refuse to vote for Donald Trump, but I hope this post makes it clear that policy is one of those reasons. If my conservative friends and family and acquaintances–and I love you all, don’t let this sound any different–really, truly are conservative, they need to provide for me answers to all of the above. How is it that any of the above policies are conservative?

Grace and peace.

SDG.

The Supreme Court Strikes Down Violation of Free Speech

Pro-Life_Demonstration_at_Supreme_CourtI don’t often write about politics, but today’s unanimous Supreme Court decision to strike down an MA law which restricted pro-life speech within 35 feet of an abortion clinic has me smiling. This was a clear violation of free speech and I frankly think it says something about the desperation of the pro-choice case-makers.

It seems that, at least in MA, the desperation got to the point where they realized if you can’t make your case from science or logic (links to posts arguing this), the next best thing would be to simply muzzle the opposition. Thankfully, in this case, justice was served and the blatant disregard for freedom of speech was overturned.

Let me reiterate, this was a unanimous decision. What does that say about the legal status of such an attempt? I’m not talking about objective morality, I’m speaking only of the law of the land. Why even attempt to keep such a law around?

Frankly, I think it really is a matter of the realization that when one’s case is so blatantly a house of cards, an illegal attempt to thwart free speech is the last rejoinder. Let’s be clear on this issue:

Free speech is not a matter of freedom for those with whom you agree–it’s a matter of, well, actually free speech. 

And yes, I think that applies to those who are pro-choice.

Let’s read your thoughts below (follow the comment policy–there are rules for your free speech here!).

Links

Be sure to check out the page for this site on Facebook and Twitter for discussion of posts, links to other pages of interest, random talk about theology/philosophy/apologetics/movies and more!

Pro-Life– Check out my posts arguing for the pro-life position.

SDG.

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