The Briefing 02-13-17

Why the judicial usurpation of politics is a threat to the American constitutional order

  • Tweet
  • Share
  • Email

Neil Gorsuch refuses to get political in catch-22 Q&A session with Senator Schumer

  • Tweet
  • Share
  • Email

How worldview impacts demographics and demographics reveal worldview

  • Tweet
  • Share
  • Email

Transcript

The Briefing

February 13, 2017

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Monday, February 13, 2017. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Why the judicial usurpation of politics is a threat to the American constitutional order

The federal judiciary looms larger over the American political landscape than in any previous moments in American history. Many have actually described this as the judicial usurpation of politics, pointing to the fact that over the last several decades, the federal courts have basically usurped much of the American political process. The courts here can be blamed for an overweening ambition and for an aggressiveness in entering the political process and basically preempting the other two branches of government. Judges in many cases have acted like unelected legislators and supreme arbiters in terms of not only what is constitutional, but increasingly what the judges understand to be right.

But the other two branches of government share in the blame. Congress certainly deserves blame for creating a political vacuum by its tendency to avoid controversial legislation, leaving the way open for the federal courts to enter into the questions. And presidents sometimes deserve blame for tempting the federal courts to enter into the political fray by issuing executive orders or handing down other presidential decisions that seem to open the door for the courts to enter. Arguably, that’s exactly what has happened in recent days with reference to President Donald Trump’s executive order on immigration and refugee policy, and then the action taken by the three-judge panel of the Ninth US Circuit Court of Appeals to stay that executive order pending further judicial review.

Show Full Transcript

The dangerous thing we need to note here is that once the courts have entered into adjudicating matters of national security and foreign policy, it may be difficult for the executive branch to recapture its rightful constitutional authority in these areas. Over the last several days we’ve had the opportunity to look at the actual text of the decision handed down by these three judges, and it represents some real challenges in terms of our constitutional separation of powers. Even as the panel did not adjudicate formally upon the President’s policy, it did reject the White House’s authority to act in matters of national security and foreign policy without preemptive judicial review; about this the three-judge panel was very adamant. And in this that panel set a precedent that might be quite dangerous for the nation and in that danger the President now shares some responsibility.

For this reason we can understand the wisdom behind the announcement that came from the White House on Friday, indicating that the President and his administration are now considering withdrawing the executive order and issuing an entirely new executive order in a set of presidential directives that are likely to accomplish the very same goals without many of the complications, constitutionally speaking, that set the entire judicial process into motion. The editors of the Journal got it exactly right when they wrote that,

“The Ninth Circuit decision jeopardizes core executive powers over national security. Unelected judges are inviting themselves to serve as policy makers who supervise foreign affairs, and where that impulse stops nobody knows.”

Indeed, nobody does know, but there are already ominous signs elsewhere. Where federal judges have intruded into the political process, they rarely later retreat, and it would be particularly ominous, given our constitutional system of government, if the judges set themselves up as the arbiters of American foreign policy and the determinators of policy concerning our national security.

Furthermore, there is one other very dangerous precedent set in this decision handed down by the three-judge panel of the Ninth Circuit. That is this: the judges confuse the issue of standing. Standing is the legal term that explains how someone has the appropriate status to bring an action against another, in this case against the United States federal government, in particular against the President of the United States. And the decision that was handed down by this three-judge panel basically extends standing far beyond even American citizens and those who are already involved in the immigration and refugee policy.

In this light we can hope that the Trump administration, the President of the United States himself, will issue a new executive order that is likely to clarify the policies and to avoid some of the issues that led to the litigation. And that means that effectively removing the previous executive order would nullify or make at least of no meaning the decision handed down by this three-judge panel. That will be a good thing for all, even without regard to the specifics of the Trump administration’s executive order. It’s not the policy in this case that is so much in question, but the process.

Neil Gorsuch refuses to get political in catch-22 Q&A session with Senator Schumer

And next, in this light we need to understand that those who have been trying to move America in a far more liberal direction—they might call themselves liberal progressivists—have been looking to the federal courts for more than a half-century now as the means of their rescue. What they could not accomplish in terms of legislation, they have sought to accomplish in the courts. That, once again, is that judicial usurpation of politics. Those who are the moral liberals in this country have found willing allies largely in the federal judiciary. Two glaring examples of that would be 1973 in the Roe v. Wade decision legalizing abortion. There was no political chance whatsoever that the United States Congress was going to approve legislation that would have accomplished what the Roe v. Wade decision did. The federal courts did what Congress would not do. Similarly, in 2015 the Obergefell decision legalizing same-sex marriage followed the same pattern. There is no way that a measure legalizing same-sex marriage could’ve made its way through the elected houses of Congress and then been signed into law by the President of the United States, and so those who were pressing for the legalization of same-sex marriage went elsewhere. In particular, they went to the federal courts where of course they won.

So we notice a pattern whereby this massive moral change is not only aided and abetted, but outright facilitated by the intrusion of the federal courts into so many of these questions. And that explains why the composition of those courts, why nominations as judges to those courts, receive so much attention and why paramount attention is directed to the United States Supreme Court and in particular to President Trump’s nomination of Judge Neil Gorsuch to fill this position that has been vacated by the death of Justice Antonin Scalia.

And in this light, an extremely important article appeared yesterday in the New York Times, important not only for what it says, but for who said it. In this case, the writer of the article is none other than the Democratic leader in the United States Senate, Senator Charles E. Schumer, Democrat from New York. The title of his article,

“We Won’t Be Fooled Again.”

Now let’s be clear about what Senator Schumer argues in this article. He argues that it is entirely appropriate, given the current moment, for members of the United States Senate to ask specific questions of a nominee to the United States Supreme Court, and if they do not get the acceptable answers that they desire or demand, they have every right to simply vote against the nominee.

Now in this light we need to go back to the middle decades of the 20th century when the United States Senate began to institutionalize holding hearings, especially through the judiciary committee, and grilling nominees to the United States Supreme Court. But those grillings were very, very rare. And the precedent was set by many of those nominees to refuse to answer any questions about any matter that might at any time in the future appear before the Supreme Court.

The principle here is not only the separation of powers, but judicial neutrality. That is, the judges should not be appointed to the court depending upon how they will promise or indicate they might rule at some point in the future. And of course this leads to a ransacking of what judges have decided in the past, and the nomination of Judge Gorsuch is exactly an example right now of what both sides are doing in terms of his judicial record. But the really ominous thing that is included in Senator Schumer’s article is the outright declaration that some new set of rules now must pertain and Senator Schumer directly ties this to the presidency of Donald Trump. Senator Schumer wrote,

“The bar is always high to achieve a seat on the Supreme Court, but in these unusual times — when there is unprecedented stress on our system of checks and balances — the bar is even higher for Judge Neil M. Gorsuch to demonstrate independence. In order to clear it, he will have to convince 60 of my colleagues that he will not be influenced by politics, parties or the president. The judiciary is the last and most important check on an overreaching president with little respect for the rule of law.”

Now at this point what we see in this article says more about Senator Schumer than either about President Trump or about his judicial nominee to the United States Supreme Court. In those particular words I just read from Senator Schumer, he is basically announcing that we are under a new set of political conditions. That means that the old models whereby we understood any pretense of judicial neutrality are now to be dispensed with. In his article, Senator Schumer actually sets up an impossible and, for that matter, unsustainable test. He writes, and I quote,

“Without any hints about his philosophy or examples of how he might have ruled on landmark cases, the only way that Judge Gorsuch was able to demonstrate his independence as a jurist was by asserting it himself. He could give no evidence of it in his record, and therefore I could have no assurance of it in the future.”

So what’s the impossible test here? What’s implausible? It is Senator Schumer’s insistence that somehow a nominee to the United States Supreme Court has to prove his judicial independence. What’s impossible about that? It’s basically proving a negative. There is no way to prove one’s independence that would meet the standard of Senator Schumer and in all likelihood the majority, if not the entirety, of his Democratic colleagues in the United States Senate. What these Democratic Senators are looking for is the assurance that somehow Judge Gorsuch, once he is a Justice on the United States Supreme Court, can be predicted to rule against President Trump in a matter that might in the future—no one knows what that matter might be—come before the United States Supreme Court. The background to this is also established in Senator Schumer’s article when he wrote,

“When I met with Judge Gorsuch on Feb. 7, I sought to ascertain his potential to be an independent check on the president. The judge was clearly very smart, articulate and polite, with superb judicial demeanor. But over the course of an hour, he refused to answer even the most rudimentary questions.

“I asked him whether an unambiguous Muslim ban would be constitutional. He refused to answer. I asked him if he agreed with conservative lawyers who say the president has abused executive power. He refused to answer. I asked him whether he thought the president’s comments on voter fraud would undermine our democracy. He refused to answer.”

Now let’s just note at this point that’s what any nominee to the Supreme Court would be expected to do, to refuse to answer on questions that are almost assuredly, eventually to come before the United States Supreme Court. Let’s just turn the matter on its head, what would it mean if a nominee to the Court actually did answer questions like this? This is really a staged political argument, setting up those who oppose Judge Gorsuch’s nomination to claim that they’re doing so because he lacks any record of sufficient judicial independence. But what they really want is an assurance on the front end that any nominee to the United States Supreme Court would be in effect a judicial adversary to the President of the United States.

Now there’s something else to note here, and that is that Senator Schumer and many others are claiming that we are now in an entirely different political set of circumstances, even constitutionally defined, than the United States has ever experienced before. We just simply need to note there is absolutely no evidence of that whatsoever. Our national conversation is certainly different, as was the political context that included the election of Donald Trump as President of the United States. We are certainly in a very different political season, but how exactly at this point that represents some kind of urgent constitutional crisis, that’s not at all clear.

We might wish that President Trump would be a bit more measured in his comments about the federal judiciary, but let’s simply point out those federal judges serve a lifetime term. They are under no threat of active influence or threat from the President of the United States. On the other hand, the independence of the judiciary is undermined by the kind of arguments that are made in yesterday’s edition of the New York Times by the Democratic leader of the United States Senate.

But there’s a bit of candor that should be also brought to the forefront here. Given the fact that so much is now at stake in the federal courts taking on so much responsibility for so much of America’s political life, including some of our most urgent current moral questions, there is no doubt that both sides in our political and moral controversies understand that it will matter greatly who sits on the United States Supreme Court, and that points out why under the current circumstances, all the old rules appear to be now thrown out. But no one should argue that this is good or healthy for American democracy.

How worldview impacts demographics and demographics reveal worldview

Next we need to look at the intersection of worldview and demographics, because at this intersection, the traffic profoundly flows both ways. Worldviews impact demography, but demography also has an impact upon worldviews. Evidence of this comes in the current edition of Foreign Policy magazine in an article entitled,

“Here’s looking at you, 2050.”

The article is by demographer Paul Taylor, and he explains how a less Christian Europe, an aging population in the West, and the empowerment of women are going to shape the future. He points to several trends that are demonstrated in terms of population statistics. He writes,

“The 21st century is still just a teenager, but we can already forecast with a fair degree of confidence what its demographic profile will look like by 2050.

“Population growth will have slowed down. Global aging will have risen to unprecedented levels. Birthrates will drop. The working-age share of the world’s population will shrink. Poverty will ameliorate in poor countries; income inequality will worsen in wealthy ones. And for the first time ever, Islam will challenge Christianity as the world’s largest religion.”

He also points out that,

“What’s notable about these disparate trends is how much they are interrelated. They’re driven not just by the traditional demographic triad of births-deaths-and-migration, but by myriad powerful new forces that define modernity — from the empowerment of women, to improvements in health care, to the information and technology revolutions, to the concurrent rise of secularization and religious fundamentalism.”

Now here we need to note something. An interesting code word was asserted within this particular paragraph. That code term comes down to “the empowerment of women.” What exactly does that mean? That becomes shorthand for several things that include the redefinition of the family and human reproduction, the entry of so many women into the workforce, and also the dropping of the birth rate, especially by means of technology such as the development of the pill and also by the failure of our current society to expect a fairly high birth rate. That is, the bearing of children is now a far more marginal concern on the part of this society than it was in the past.

Taylor also points out that there are different patterns related to different parts of the globe. Africa will have a growing population still driven by a very high relative birth rate, while in Europe and in nations like Japan, it is plummeting. Just consider this statistic in terms of one century by projection. In 1950, there were nearly twice as many Europeans as there were Africans. But in the year 2050, it is expected that there will be 3.5 times as many Africans as Europeans. That’s pointing to a very different pattern related also to very different worldviews in terms of those two different continents. Taylor writes that,

“The staggering reversal of population fortunes is largely the result of the huge continental differences in birthrates — 1.6 children per woman in Europe today versus 4.7 children per woman in Africa.

“By midcentury, however,” he writes, “those rates are expected to increase in Europe and decrease in Africa, as both continents converge toward the projected global rate of roughly 2.25 down from 5 in 1950 and 2.5 in 2015.”

Here there is something else that is also very, very important from a worldview perspective. As nations have become more wealthy, their birthrates go down. The more money people have, even as they could now afford more children, the cost of raising those children is offset by other lifestyle goals, and this means that in those countries that become more wealthy, the birth rate goes down. Meanwhile in poor nations, the birthrate continues to be high and in some nations actually growing higher. But we also need to note that as those nations that grew wealthy also had a decreasing birthrate, that decreasing birthrate is going to threaten the economic vitality. There won’t be enough people working and there won’t be enough people paying into social security systems to fund the aging population. So as the societies became more wealthy, their birth rate dropped, but the dropping birthrate also means that the societies are going to find it very difficult to remain as wealthy.

Good news in this demographic data is that so many around the world, particularly in the developing world, have been escaping extreme poverty. According to the World Bank,

“1 billion people have climbed out of extreme poverty since 2000, the vast majority of them in poor countries.”

But here from a biblical worldview, we find further issues of deep concern. Taylor writes that,

“Economics isn’t the only human realm in the throes of demographic change. The world’s religious profile is also undergoing a major shift, driven mostly by differences in fertility rates and age structures around the globe, as well as by faith-switching.

Islam is the fastest-growing major religion in the world.”

According to projections he attributes to the Pew Research Center, by the year 2050 the number of Muslims will just about be equal or at parity with the number of Christians in the world; both at about 2.8 or 2.9 billion.

“If current trends continue,” he says, “Islam will surpass Christianity as the world’s largest religion around 2070.”

A part of this once again is birthrate.

“Muslim women have the highest fertility rate of any major religion.”

That’s at 3.1 per woman in the Muslim world. In terms of the secularization of some of the older European nations, for the first time the Christian populations in France and Britain are expected to drop below half by midcentury.

“The growth of Christianity is expected to slow in part due to followers leaving the faith, a phenomenon most prevalent in developed countries like the United States (where the Christian population is projected to decline from more than three-quarters in 2010 to two-thirds in 2050). In comparison, throughout Europe, the Muslim population is expected to rise slightly. These projections are dependent on migration patterns that could be affected by geopolitical developments.”

In other words, these trends might not happen exactly as they are here forecast, but there’s every reason to believe that the birth rate differential is going to continue. And we also note that the secularization of these European countries and also North America, in particular the United States, continues. And you’ll notice that one of the reasons why it is suggested that there will be a loss of the Christian population in the United States is because so many will be switching away from Christianity to something else—and we need to note that “something else” is generally nothing at all. And there’s no real surprise to those of us who have been following this data. We’ve been watching the evaporation of cultural Christianity of so-called nominal Christianity in just one generation. The process of secularization that took decades to take place in many European countries is happening here in the United States at something like warp speed.

This is where we need to bring in theology to check demography, because there actually is no indication whatsoever that there will be fewer believing Christians, that is actively engaged disciples of the Lord Jesus Christ, in the United States of America in the year 2050. What it does tell us is that there will be fewer people who say they are Christian or might even by some cultural definition believe themselves to be Christian. We see how worldview determines demography and population just by looking at the fact that what one believes about sex and marriage and reproduction and the purpose of life, what one believes about babies has everything to do with whether or not a nation has a high or a low birth rate.

For American Christians in the year 2017, these figures probably more than anything else point to our concern, our rightful concern, for the world and for the culture that will be inherited by our children and especially by our grandchildren. And of course the Christian church had better pay close attention to these figures because they describe not only the future of our national and international demography, but the future of our mission field.

Dr. Mohler recording The Briefing