When the Supreme Court engages in bad history

Supreme Court

Willamette University law professor and historian Steven K. Green makes a compelling case that the Supreme Court was “sloppy” in its use of history in the recent Espinoza v. Montana Department of Revenue decision.

Here is a taste of his piece at Religion Dispatches:

More broadly, the opinions in Espinoza raise questions about the Court’s use of history, particularly when it becomes a rule of constitutional law. History is “complex,” as Chief Justice Roberts acknowledged and Justice Breyer echoed, yet an adversarial legal forum is not the optimal place for settling the complexities of a historical event. The efforts of Catholic immigrants to find acceptance in nineteenth-century America have been documented, as has the resistance of Protestants who were suspicious of the commitment of a foreign-born Catholic hierarchy to American democratic values. 

That this episode coincided with the development of American common schooling has only added complexity to the historical narrative. Proponents of common schooling sought to create an institution where children of various faiths could acquire a commitment to republican values, while ensuring the financial security of the fledgling public schools. Public school advocates were also concerned about ensuring public accountability and public control over school funds. 

Funding a competing system of religious schooling—at the time, not solely Catholic but also Lutheran, Episcopal, Methodist, and Baptist schools, among others—would have stunted the development of public education, its advocates believed. Witnessing the rapid growth of Catholic immigration and its rising political influence in many cities, public education advocates also feared that funding religious schools would lead to religious competition and divisiveness. 

Embracing some of those arguments, nativists then added a layer of anti-Catholic prejudice that was guaranteed to appeal to some, but not all, Protestant Americans, including those who faced economic dislocation resulting from the influx of immigrant workers. At the opposite end of the spectrum was a cohort of liberal Protestants and freethinkers who opposed funding of religious schooling on grounds it violated church-state separation and the rights of conscience of those who didn’t want their tax dollars to support religious beliefs with which they disagreed. 

I could go on because there’s more to the story, but that’s precisely the point. This history is too complex to be decided in a judicial forum. In writing opinions, judges commonly draw on the information contained in the briefs of the parties and their supporting amici curiae. These briefs are written by lawyers (typically not historians) who advocate for particular outcomes and provide arguments and cherry pick data to support those resultsThis process is far removed from the enterprise of historical scholarship. 

Not only is legal adjudication not the optimal forum for unpacking the nuances of history, but a judge’s interpretation of a historical event takes on a greater significance. By “declaring” the defining meaning of a particular historical episode—something that historians refrain from doing—that interpretation becomes a constitutional rule. 

Read the entire piece here.

Monday night court evangelical roundup

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What have Trump’s evangelicals been saying since our last update?

Mike Pence’s nephew hosted a court evangelical conversation with Paula White, Johnnie Moore and Samuel Rodriguez. This is an event sponsored by the Trump campaign. Watch:

At the 5:30 mark, Moore starts out with a lie. Joe Biden does not want to prosecute people for going to church. Moore is outraged that St. John’s Church in Washington D.C. was burned during the protests earlier this month. Please spare us the sermon, Johnnie. If this was any other moment, Moore, who likes to fashion himself a “modern day Dietrich Bonhoeffer,” would be attacking the rector of the church and its congregation for its liberal Protestant theology and commitment to social justice. (By the way, Bonhoeffer adhered to both liberal Protestantism and social justice. Moore’s Bonhoeffer comes directly out of the pages of Eric Metaxas’s popular, but debunked biography).

If you watch this video, you will see nothing but fear-mongering.

At one point in the conversation, Paula White says that Trump is fighting for the First Amendment and the Second Amendment. Since when was the right to bear arms a Christian concern? White claims that the Democratic Party platform says that it is a “party of the Godless.” Just to be clear, there is no such language in the platform. She also goes into what I call the “they are coming for our Bibles” mode. Here’s White: “We can basically kiss our churches goodbye, our houses of worship…we very well could be home churches at that.” As I wrote in Believe Me, this kind of fear-mongering reminds me of the Federalists during the election season of 1800 who thought Thomas Jefferson, if elected, would send his henchman into New York and New England to close churches and confiscate Bibles. (It didn’t happen. In fact, Jefferson was a champion of religious liberty). White believes that we are in a spiritual war for the soul of America. She mentions a conversation with Ben Carson in which the HUD Secretary told her that the forces of Satan are working to undermine Trump.

Moore defends Trump’s record on global religious freedom. Indeed, Trump seems to have made religious persecution abroad a priority. Only time will tell how successful this campaign has been or will be. But notice that Moore says nothing about the president’s approval of Muslim concentration camps in China. Why? Because Moore is not here to tell the whole truth about Trump as it relates to religious freedom. He is here to help Trump get re-elected. Or maybe talking about the religious persecution of Muslims in China won’t help Trump with white evangelical voters, many of whom still believe Obama was a Muslim. Most of Trump’s evangelical followers only talk about religious liberty when it relates to their own causes. Moore knows this.

Moore then attacks Democratic governors for trying to close churches during COVID-19. He has a lot of nerve. It was Democratic governors like Andrew Cuomo (and GOP Ohio governor Mike DeWine, among others) who showed leadership during the coronavirus while Trump was tweeting “liberate Michigan.”

Samuel Rodriguez basically says that if you vote for Trump, you are voting against the legacy of Martin Luther King Jr.

OK, that was hard to stomach. Let’s move on.

Moore is also tweeting. He is upset about today’s Supreme Court decision on abortion, especially Chief Justice John Roberts’s decision to join the liberal justices in blocking a Louisiana abortion law restricting abortion rights:

What does Moore mean when he says that this is the “Scalia-moment” of the 2020 campaign? Here is a passage from Believe Me: The Evangelical Road to Donald Trump:

Already hitting his stride with his base, [GOP presidential candidate Ted] Cruz gained a new talking point in mid-February, with Super Tuesday only a couple of weeks away. When conservative Supreme Court justice Antonin Scalia died suddenly on a quail hunting trip in Texas, and it became clear that the Republican-controlled Senate would not provide a hearing for Merrick Garland, Barack Obama’s appointee to replace Scalia, the presidential election of 2016 became a referendum on the future of the high court. Scalia was a champion of the social values that conservative evangelicals hold dear, and it was now clear that the newly elected president of the United States would appoint his successor.

Cruz seized the day. Two days after Scalia died and five days before the 2016 South Carolina primary, Cruz released a political ad in the hopes of capitalizing on evangelical fears about the justice’s replacement. With a picture of the Supreme Court building as a backdrop, the narrator said, “Life, marriage, religious liberty, the Second Amendment. We’re just one Supreme Court justice away from losing them all.” In an interview with NBC’s Meet the Press, Cruz said that a vote for Hillary Clinton, Bernie Sanders, or Donald Trump could lead American citizens to lose some of their rights. “We are one justice away from the Second Amendment being written out of the constitution altogether,” he said. “And if you vote for Donald Trump in this next election, you are voting for undermining our Second Amendment right to keep and bear arms.” Cruz pushed this appeal to evangelical fear even harder at a Republican Women’s Club meeting in Greenville, South Carolina. He told these Republican voters that the United States was “one justice away” from the “the Supreme Court mandating  unlimited abortion on demand,” and for good measure he added that it was only a matter of time before the federal government started using chisels to “remove the crosses and the Stars of David from the tombstones of our fallen soldiers.”

I wonder if the modern-day Dietrich Bonhoeffer has learned the right lesson from 2016? Some might say that the recent Bostock decision, and today’s Louisiana abortion decision, should teach evangelicals to stop relying on the Supreme Court to “reclaim” America, especially when such an approach to “Christian” politics requires them to get into bed with a president like Trump. But, alas, Moore would never even consider such a lesson because it does not conform to the Christian Right’s political playbook.

Meanwhile, Paula White is supernaturally praying for her Twitter followers:

I’m just curious. Is there  a way to “pray” for a non-“supernatural provision?” Sorry, I had to ask.

Jentezen is also upset about the SCOTUS decision:

Tony Perkins too:

I agree with the idea that every life is valuable, including unborn babies. But putting faith in SCOTUS and POTUS is not the answer.

Robert Jeffress is still basking in the idolatrous glow of yesterday’s Lord’s Day political rally at his church. Here is his retweet of Mike Pence:

A spokesperson for Liberty University’s Falkirk Center retweets Princeton University scholar Robert George. As you read this retweet, please remember that The Falkirk Center supports Donald Trump and Trump is a pathological liar:

She is also upset with John Roberts:

And this:

Sadly,  in light of what we have seen thus far from the Trump presidency as it relates to race and Confederate monuments, this “idiot activist” seems to be asking a reasonable question.

Charlie Kirk is also mad at John Roberts:

It looks like the court evangelicals are very upset about an abortion case in the Supreme Court, but they have said nothing about Trump’s racist tweet over the weekend. I guess this falls under the “I don’t like some of his tweets, but…” category.

John Zmirak, who is an editor at court evangelical James Robison’s website The Stream, is back on the Eric Metaxas Show. He is comparing Black Lives Matter to Jim Jones and Jonestown. The entire conversation, ironically, is about people blindly putting their trust in a strongman. Metaxas wastes no time in connecting Jonestown to today’s Democratic Party. A Christian Right bromance may be forming between these two guys.  Metaxas tells Zmirak: “we are so glad you are on the program today, thank the Lord.”

They also condemn Black Lives Matter. Zmirak calls BLM a “slogan, a “trademark,” and a “brilliant piece of marketing” that is “raising money off of white guilt.” Sounds a lot like another slogan, trademark and brilliant piece of marketing. This one is raising money off of white supremacy.

In another part of their conversation, Metaxas and Zmirak say that Black Lives Matter is wrong from a Christian point of view because all men and women are created in the image of God. In other words, anyone who wants to say that only Black lives matter is actually racist (reverse racism, as they say) because in God’s eyes “all lives matter.” I’ve heard this argument before. Here is a quick response:

Indeed, Christians believe that we are all created in the image of God. As the civil rights movement taught us, Christian faith offers plenty of theological resources to combat racism. Moreover, the Black Lives Matter movement is very diverse. Author Jemar Tisby makes some important points in this regard in Episode 48 of The Way of Improvement Leads Home Podast.

I am sure Metaxas and Zmirak are correct about some of the abuses of the Black Lives Matter movement. But notice what is going on here. Metaxas and Zmirak are really only interested in attacking the Black Lives Matter movement. Since the killing of George Floyd, Metaxas has not offered any sustained empathy or acknowledgement of the pain and suffering faced by African-Americans, either now or in our nation’s history. Yes, he had some black guests on the program, but they were invited on the show for the purpose of undermining Black Lives Matter and rejecting systemic racism. At this moment, when white evangelicals have a wonderful opportunity to think more deeply about the problems of race in America, Metaxas has chosen to divert attention away from these issues by going after the extreme fringes of a generally anti-racist movement.

In his second hour, Metaxas hosts a writer named Nick Adams, the author of a book titled Trump and Churchill: Defenders of Western Civilization. He runs an organization called The Foundation for Liberty and American Greatness. Adams makes it sound like Trump has some kind of agenda to save Western Civilization. This strikes me as very far-fetched since I don’t think Trump even knows what Western Civilization is. Metaxas, of course, loves his guest’s ideas, going as far to say, in reference to World War II (Churchill) and COVID-19 (Trump) that both men carried their respective nations through their “darkest hours.”

Until next time.

Instead of Booing Him, CPAC Should Have Embraced Mitt Romney.

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This is a piece I wrote on last weekend’s CPAC that was never able to place.  –JF

The name of Mitt Romney was booed relentlessly at last weekend’s Conservative Political Action Conference (CPAC) in Fort Washington, Maryland.

This year’s CPAC was noteworthy for the relative absence of Christian Right speakers and the general downplaying of the religious wing of today’s conservative movement, but it still spoke volumes about the nature of the movement’s view of the role of religion in public life.

Donald Trump has used his bully pulpit to attack Romney for voting in favor of removing him from office during the Senate impeachment trial.  At last month’s National Prayer Breakfast, the president made a less-than-veiled attack on Romney’s Mormon faith when he said: “I don’t like people who use their faith as justification for doing what they know is wrong.”

On Saturday, as he spoke to the CPAC faithful, Trump called Romney “a low life.”

Trump’s followers on social media and conservative cable outlets have also excoriated Romney.  Pundit Ann Coulter dubbed him a “useful idiot” for Democrats.  Donald Trump Jr. demanded Romney’s remove from the Republican Party: “He’s now officially a member of the resistance & should be expelled.”

In the immediate wake of Romney’s vote, Matt Schlapp, chairman of the American Conservative Union, the special interest group that stages CPAC each year, tweeted that the 2012 Republican presidential nominee was “formally NOT invited” to this year’s conference.  In a Fox News interview, he added: “This year I’d actually be afraid for his physical safety, people are so mad at him.

Schlapp may have been right about Romney’s safety at this year’s CPAC. Charlie Kirk, a pro-Trump activist who works on college campuses, encouraged the audience to boo every time Romney’s name was mentioned during the conference.

In a relatively successful attempt to work the crowd into a frenzy, Kirk claimed that Romney lied to the people of Utah about his conservative credentials while campaigning for his Senate seat.

These attacks on Romney at CPAC and elsewhere seem counter-intuitive when one considers that the Senator’s deeply held religious convictions informed his vote to remove Trump from office.

“I am a profoundly religious person,” Romney said as he fought back tears during his address on the floor of the Senate on February 5, 2020, the day before the removal votes, “I take an oath before God as enormously consequential.”

Whatever one thinks about Romney’s speech and its references to his Mormon faith, it is hard to argue with the fact that it was exactly the kind of faith-informed, conscience-driven style of politics that Christian conservatives have long championed.

Romney’s speech seemed to bolster, not undermine, what Kirk calls his “conservative credentials.” It was an exercise of religious liberty, one of the major political issues that led many conservatives to support Trump in 2016 and will lead them to pull a lever for the president again in November.

Why then would Jerry Falwell Jr., the president of Liberty University, a Christian RIght school founded by his father in 1971 to fight for conservative evangelical values and the freedom to express those values in the public square, tell Romney, in a Fox News interview, to “keep his religion in his personal life?”

Falwell and Kirk recently founded the Falkirk Center, a Liberty University think tank designed to advance Judeo-Christian values and defend “religious liberty.”  Perhaps Falwell and Kirk should hire Romney as a spokesperson for their new center.

When Romney delivered his anti-Trump speech on the Senate floor, he was bringing religious belief and conviction to what John Roberts described during the impeachment trial as the “world’s greatest deliberative body.”  Romney’s integration of faith and politics was a direct assault on secularism in government.

Romney exercised his religious-shaped conscience at a crucial moment in our nation’s political history.  When future school children study his speech, they will inevitably think about it in this light.

Those who care about religious liberty for all Americans should cheer, not boo, Romney’s invocation of faith on the floor of the Senate.  Unless, of course, Christian conservatives care only about faith-informed politics and religious freedom when it benefits Trump or their own political agenda.

On John Roberts and Pettifogging

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Watch Chief Justice John Roberts here.  (For some reason You Tube will not let me access its embedding codes today).

Pettifogging: “worrying too much about details that are minor or not important.”  It was often used a derogatory statement about lawyers.

Charles Swayne was a U.S. District Court judge for the Northern District of Florida.  He was appointed by Benjamin Harrison in 1889 and confirmed by the Senate in 1890.  The House of Representatives impeached him on December 13, 1904 for “filing false travel vouchers, improper use of private railroad cars, unlawfully imprisoning two attorneys for contempt outside of his district. (Sounds like pettifogging to me! 🙂 ) Swayne admitted to the charges and called his lapses “inadvertent.” The Senate found him “not guilty” on February 27, 1905.

You can read the excerpt from the trial, including the use of the word “pettifogging,” here (p.188).

You can also read an edited excerpt of the proceedings from Hinds’ Precedents of the House of Representatives.

A few thoughts:

First, we can always use more civil discourse.  Of all the House Managers, Nadler is the most obnoxious.  Cipollone and Sekulow seems to be performing for Donald Trump.

Second, John Roberts came to the Trump impeachment trial prepared.  He anticipated this kind incivility and was ready with the “pettifogging” quote from the 1905 Swayne trial.  Nice work.  We will see what he has up his sleeve today.

Third, is Roberts right when he says that the Senate is the “world’s greatest deliberative body” because “its members avoid speaking in a manner and using language that is not conducive to civil discourse?” This is how the framers may have envisioned the Senate, but American history suggests that Roberts may be too optimistic about this legislative body.  Here is Yale historian Joanne Freeman in Field of Blood: Violence in Congress and the Road to the Civil War:

…the Senate was generally calmer than the House.  Smaller in size, with its acoustics in working order and its members a little older, more established, more experienced, and sometimes higher on the social scale, it was a true forum for debate….Debate in the Senate was thus more of a dialogue–long winded, agenda-driven, and something of a performance, but a dialogue just the same. That doesn’t mean the Senate was a haven of safety.  It wasn’t  There were plenty of threats and insults on the floor. Henry Clay (W-KY) was a master.  His attack in 1832 on the elderly Samuel Smith (J-MD), a Revolutionary War veteran and forty-year veteran of the Senate, was so severe that senators physically drew back, worried that things might get ugly.  Clay called Smith a tottering old man with flip-flopping politics; Smith denied it and countered that he could “take a view” of Clay’s politics that would prove him inconsistent; and Clay jeered “Take it, sir, take it–I dare you!”  Smith defended himself, but when he later sought the advice of John Quincy Adams (clearly Fight Consultant Extraordinaire), Smith was do deeply wounded that he was on the verge of tears.

Chief Justice John Roberts Needs to Attend Oral Arguments Tomorrow on a Religious Liberty Case

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Is Roberts getting sleepy?

Mitch McConnell is going to let this first day of the impeachment trial go late into the night.  I wonder if he knows that John Roberts needs to get up early tomorrow morning for oral arguments on the Supreme Court case Espinoza v. Montana.  I would think that the GOP might want the Chief Justice to be well rested and fresh for these particular oral arguments.

Here is the excerpt from the SCOTUS calendar:

And on January 22, the justices will hear oral argument in Espinoza v. Montana Department of Revenue, a dispute over a Montana law that created tax credits to provide scholarships for families who send their children to private schools, including religious schools. The Montana Supreme Court struck the law down, ruling that it violated the state’s constitution because it helped religious institutions. Three low-income mothers who used the scholarships to send their children to a Christian school in Kalispell, Montana, went to the Supreme Court, arguing that excluding religious schools from the scholarship program violates the federal Constitution.

Read more about this case here.

Who Presided Over Andrew Johnson’s Impeachment Trial?

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On Thursday, Chief Justice John Roberts began presiding over the Donald Trump impeachment trial.

Over at The Washington Post, Michael Rosenwald writes about Salmon P. Chase, the Chief Justice who presided over Andrew Johnson’s impeachment trial in 1868.  Here is a taste of his piece, “The chief justice who presided over the first presidential impeachment trial thought it was political spectacle“:

Johnson was on trial for, among other things, violating the Tenure of Office Act in 1867, which said the president couldn’t fire important government officials unless he got the go-ahead from the Senate. Johnson had fired the secretary of war, Edwin M. Stanton, without consulting the Senate. Cue impeachment.

Chase thought the whole thing was much ado about nothing.

“Chase had profound misgivings about the trial,” Niven wrote. “He considered the articles more of partisan rhetoric than substantive evidence for a conviction.”

In a letter to Gerrit Smith, a fellow abolitionist and former congressman, Chase wrote that “the whole business seems wrong, and if I had any opinion, under the Constitution, I would not take part in it.”

Chase suspected the whole business would become a public spectacle.

Read the entire piece here.

Who is Henry Marie Brackenridge?

 

HM_Brackenridge_1901Chief Justice John Roberts quoted a Brackenridge speech in the Trinity Lutheran v. Comer majority opinion.

Here is a taste of Ann E. Marimow’s piece at The Washington Post:

The lawmaker Roberts cited was H.M. Brackenridge, a member of the Maryland House of Delegates and leading supporter of what was known as the “Jew Bill” — a measure to remove the state’s requirement that elected officials swear to “a belief in the Christian religion.”

The brief excerpt from Brackenridge’s lengthy speech came at the end of the 15-page majority opinion in Trinity Lutheran v. Comer. The high court found that a preschool operated by a Missouri church should have been eligible for state funding just like other non-religious charitable organizations.

Trinity Lutheran Church in Columbia, Mo., brought the case after the Missouri government excluded the church from a grant program that pays to resurface playgrounds because the state said it could not provide financial assistance directly to a church. In the 7-2 decision, Roberts quoted Brackenridge before concluding that the exclusion of the church “solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

The son of a Pennsylvania Supreme Court judge, Brackenridge is hardly a household name in Maryland’s political history having served just two terms representing Baltimore. Much of his career was spent in other states, including stints as a judge in Louisiana and Florida, and as a U.S. congressman from Pennsylvania in 1840.

Brackenridge’s 1819 speech was part of broader effort to get rid of a measure that prevented Jews from holding office. Many states in the early nineteenth-century had religious qualifications for office.

According to the Maryland State Archives, Brackenridge argued that Maryland’s requirement violated the First Amendment of the Constitution that at the time only applied to the federal government. The so-called Jew Bill did not pass during Brackenridge’s tenure, when there were only about 150 Jewish people in Maryland. Jews were unable to hold elected office in Maryland until 1826, said Emily Oland Squires, director of research, education and outreach at the Maryland State Archives.

Read the entire piece here.

It is also worth noting here at The Way of Improvement Leads Home that H.M. Brackenridge is the son of Henry Hugh Brackenridge, a Princeton classmate of Philip Vickers Fithian.