RBG, Roe, And Realism

I suppose that many Americans held their breath for a moment when they heard the news of Justice Ginsburg’s death. Obviously, her death was a great loss for her family, friends, and colleagues. Then, there is the great question of the state of her soul. Until Jesus comes, all of us shall die and give an account to God. Either one pleads the perfect righteousness of Christ for sinners or faces eternal condemnation. Regarding temporal matters, many of the rest of us held our breaths because our first thought was that will be more riots and violence and almost immediately, public figures began threatening those very things. There were doubtless those who see this vacancy as an opportunity to swing the balance of the court toward overturning Roe v. Wade and Doe v. Bolton.

After the last six months of lockdowns, protests, and mayhem it is unlikely that the temperature will cool soon but as I listen to and read the various responses it seems as if some reactions are grounded in a misunderstanding of how the Supreme Court works. More than a few comments have given the impression that the Court may convene and issue a declaration overturning Roe and and Doe. This most certainly is not going to happen.

How SCOTUS Works

The United States Supreme Court (SCOTUS) is the final court of appeals in the federal court system in the USA. It is extremely rare for a case to begin at the SCOTUS. Cases begin in a variety of places, e.g., trial courts, administrative law courts, family courts, or Congress. An appeal typically occurs when the party who lost at a lower court asks a higher court to reconsider their case. The appeal might grounded in an alleged procedural error, a point of law, or a constitutional principle. The appeal does not re-try the original case but only considers procedural errors and the like.

There are countless appeals to countless numbers of cases in the USA each year. Americans are (or have become) a highly litigious people and there are probably more lawyers than there is legitimate legal work to do. Only a fraction of the appeals are ever even considered by SCOTUS and only a fraction of those are ever heard and decided by the court. So, for a case to make it to the Supreme Court is rare. Indeed, SCOTUS is not obligated to hear an appeal. All things considered, even if someone like Amy Coney Barrett is appointed to the Court, there is no guarantee or even a great likelihood that the two precedent-setting cases on which current abortion law rests will be overturned any time soon.

The Chief And The Court

According to FindLaw.com, the court receives about 10,000 petitions annually. When a petition for certiorari (from certioro, —rare, to inform) comes to the court, it is considered by a law clerks (law school graduates selected by various justices) and these recommendations go to a conference of the justices. There the justices make arguments as to why a case should or should not be be heard. They grant certiorari and hear about 80 cases a year.

The Chief Justice has influence over which cases are heard and he (or she) assigns justices to write the opinion for the majority, when he or she votes with the majority. The current Chief Justice of the United States is John Roberts. Nominated by President George W. Bush and appointed in 2005, Roberts has shown a tendency to be deferential to precedent and to the legislative branch. Presented with the opportunity to overturn the Affordable Care Act (Obamacare), he punted it back to the Congress rather than vote to declare it unconstitutional. He voted with the minority in Obergefell v Hodges (2015), in which the court invented the right of same-sex marriage. Perhaps most telling about how Roberts might vote in any future abortion case, however, is his vote with the majority in June Medical Services v. Russo (June, 2020), in which the majority struck down a reasonable Louisiana law requiring abortionists to have admitting privileges to a hospital within 30 miles of their facility. Roberts followed a 2016 precedent, in which the court struck down a similar Texas law.

The Constitution of the United States gives the U. S. Senate the authority to give its “advice and consent” (II.2.2) to nominees to the Court. No one knows yet whom the President will nominate and or whether his nominee will survive the Senatorial inquisition. Once a nominee is approved by the Senate committee the nomination must go to the floor of the Senate for a vote.

Nominees are typically considered according to a variety of criteria. In the modern period partisan politics have come to be considered more openly. Further, no one really knows what a justice will do once seated. There is a long history of justices nominated by Republicans who, once seated, have moved in a different direction than they have voted or articulated as federal Circuit court judges. It is unusual for a judge nominated by a Democrat to become more conservative on the Supreme Court but no President can guarantee how a judge will vote once seated.

Conclusions: Patience And Prayer

For these reasons and others, no one knows whether or when SCOTUS will hear an abortion case that, if decided contrary to Roe and the subsequent decisions, would have the effect of overturning Roe and Doe. Further, contrary to the hysteria in the “news” media and on Big Social Media, there is little reason to think that Chief Justice Roberts, who seems to have assumed the position as the “swing vote” on the court, will vote to overturn Roe. Further, even if the court decided to hear a case, and even if a majority voted to overturn Roe and Doe, legal abortions would not disappear suddenly from the USA. Abortion would once again become a matter for states to decide. Certain solidly pro-abortion states would become havens for abortion and Big Abortion (e.g., Planned Parenthood et al.) would marshal their considerable resources to make abortion available to those seeking them.

In other words, overturning Roe and Doe, would not mean the end of abortion on demand. In some states, it might become more difficult to get an abortion but barring a federal law, passed by both houses of Congress, signed by the President, which would have to sustain an immediately court challenge, abortion will, tragically, remain relatively widely available.

The only thing that will end abortion in the USA is a change of heart among the men who push their girlfriends and wives to get them and a change of heart in the women who seek them. Only the Holy Spirit has the power to change hearts. Thus, we should certainly continue to work peacefully, through the system, to persuade legislators and judges that abortion is contrary to natural law, that, like slavery, it is a denial of a natural right endowed by the Creator to all human beings, even tiny little humans in the womb.

Though one would never know it from the media, Christians in America have been remarkably resourceful at providing alternatives to abortion. We need to continue that work. Women in poverty or abusive relationships do not always want to kill their unborn children and they often regret deeply their decision to do it. Alternative pregnancy centers, crisis pregnancy centers will continue to be essential long after any future decision overturning Roe and Doe.

Education will continue to be essential. Many people have simply never stopped to think about basic biology. As public education continues its decline, those who are committed to preserving the lives of unborn humans will need to provide basic education in biology and health.

More than that, however, we need to continue to pray. In the second petition of the Lord’s Prayer, we pray:

Your kingdom come,” that is: So govern us by Your Word and Spirit, that we submit ourselves to you always more and more; preserve and increase Your Church; destroy the works of the devil, every power that exalts itself against you, and all wicked devices formed against Your Holy Word, until the fullness of Your Kingdom come, wherein You shall be all in all (Heidelberg Catechism, 123).

The focus of this petition is the visible church but part of the prayer is that the Lord, by his Spirit, would “destroy the works of the devil” and that God might destroy “every power that exalts itself against” him. Again, the context here is the visible church but surely the murder of 50 to 60 million legally innocent humans since 1973 qualifies as one of the “works of the devil.”

So, the Reformed Churches should not get caught up in the current hysterical moment. We ought calmly and prayerfully to continue to fulfill our offices: preaching the law (in all its uses) and the gospel (in all its uses), administration of the holy sacraments, and prayer. Let us be a refuge for broken-hearted men and women, who have given in to the sin of abortion and who, with us, are fleeing to Jesus for free salvation by grace alone, through faith alone. Let us love and receive penitent sinners of all sorts.

The Supreme Court of the U. S. has an important office to fulfill before God and they shall give an account to him for their decisions. Whatever, in the providence of God, the Court may do, let us appeal to King Jesus for mercy to restrain evil and for his grace that the gospel may go forth freely and that through it the Spirit might do his powerful work in the hearts of all his elect.


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  1. Lately I have felt motivated to re-read Robert Bork’s epic “Slouching Towards Gomorrah: Modern Liberalism and American Decline.” I first read it shortly after its publication in 1996 and found his explanation of how the dramatic turn to the Left in this country began in the 50’s, accelerated in the turbulent 60’s, and went underground (or mainstream) in the 70’s – i.e., those radicals who took to the streets and campuses, yelling, screaming, burning, and destroying in the 60’s gradually assumed places of influence within the realm of our country’s “intellectual elite,” to be very enlightening. Upon re-reading it, nearly 25 years later, I’m being even more “enlightened” than I was in the 90’s, but also much more shocked by how the events of those past 25 years have intensified the country’s move to the far Left. And, of course, I understand the things he had to say much better than I did back then.

    One of those things is SCOTUS, an entity to which he devoted an entire chapter of his book. Many people know (at least I hope they know, but I’m beginning to wonder) that there are checks and balances between the Legislative branch(es) and the Executive office. If laws are to be passed into existence (at the federal level), they must have a majority vote in both the House of Representatives and the Senate. Then the President has a chance to either sign or reject such proposals. If he rejects, the law goes back to Congress for a re-vote and if the majority vote yea, it will become law; if there is a nay vote in either legislative entity, it will be considered dead.

    SCOTUS, however, HAS NO SUCH CHECK AND BALANCE!!. The framers of the Constitution did not include such safe guards against the country’s primary jurist because they apparently did not seem to think it necessary. Well, fast forward nearly 200 years to the Warren Court and the subsequent years and years of liberal rulings on key issues – some on moral grounds such as Roe v. Wade, others on civil grounds such as discrimination, school prayers, etc. and there is a complete mess and radical shift to the Left. Nothing can be done about it and no one can stop it from going even further. As Dr. Clark’s post points out, many supposedly “conservative” justices that have been appointed by various Presidents during the past 50+ years have yielded either to public pressure or fear of recrimination or just the fact that they were “closet” liberals all along, such as Earl Warren.

    I’m sorry, but I don’t see any coming back from this. As much as I hate to say it, I find myself gradually drifting into a negative under-realized eschatology of the future and there are few things any of us can do about it other than to pray – pray, in particular for the parousia.

    • The US Constitution, Art. 3 Sect. 2. reads:

      . . In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

      IOW this just in: According to the Constitution, Congress can rein in the Supremes if it so desired.

      As Sam Francis remarked in 2004:

      Under that language, Congress cam simply forbid the Court even to hear, much less rule on, let us say, cases involving the marriage of persons of the same sex.

      Or cases involving capital punishment. Or cases involving flag burning. Or cases involving whatever the Congress decides to forbid the Nameless Nine from spending their vast intellectual resources and spiritual energies upon.

      With a stroke of the congressional pen, “judicial activism” could be ended, and it could have been ended decades ago, had conservatives been at all serious about what they claim to be serious about.

      If Congress ever did use its powers to curtail judicial misrule, the judges would get the message, and those who didn’t would find themselves in trouble.

      As it is, why shouldn’t judges hand down the preposterous and socially destructive rulings they have inflicted on the nation for the last 40 years?

      No one—least of all conservatives—has ever done anything to stop them or deter them.

      Real conservatives who really want to stop both homosexual “marriages” and the judicial tyranny that has usurped unconstitutional power in this country would be well advised to find themselves another means of accomplishing those goals than amending the Constitution.

      While they’re at it, they might find themselves another president too.

      I know. Probably not going to happen in at least the near future.

  2. Sound eschatology at all times, every season, and until the Lord returns:

    “But of that day and hour no one knows, not even the angels of heaven, but My Father only….For this reason, you also must be ready, because the Son of Man will come at an hour you do not expect.”

    WCF 33.3 As Christ would have us to be certainly persuaded that there shall be a day of judgment, both to deter all men from sin, and for the greater consolation of the godly in their adversity:a so will he have that day unknown to men, that they may shake off all carnal security, and be always watchful, because they know not at what hour the Lord will come; and may be ever prepared to say, Come, Lord Jesus, come quickly. Amen.

    In other words, “Press on Toward the Goal” and serve the Lord with gladness. He has brought about all things by way of eternal decree and sovereignty because He is all mighty–and this includes human responsibility under His providence by which it is established and not abrogated!

  3. My thoughts regarding this are very much along the same lines as those regarding the election. The SCOTUS nor the POTUS can save your soul nor the soul of any man. So much of this hysteria in the evangelical world seems to be derived from a misguided trust in princes, not God. I’ve been meditating on Psalm 146 the past couple weeks at was struck by how, in every age, there is a temptation to put “…trust in princes, A son of man, in whom there is no salvation.” (Ps 146:3). This psalm beautifully contrasts the failures of human government and God’s sovereignty and providence. This article further points out the futility in getting swept up in this hysteria while also reminding us of the root of the problem and the only solution, hearts being transformed by the Holy Spirit and confirmed to the will of God. Sinful men coming to Christ. As is the case in all ethical situations, no change can happen in full apart from these works of the Spirit.

    • To clarify one thing, I’m not negating the right of voting nor saying its wrong. Rather, what I observe in Evangelicalism in the States, is that government is a savior to so many. To be sure Romans 13 is a truth not to be ignored and we have a measure of influence that we can bestow woth our right to vote. But when ones life is turned upside down due to the results of an election it points to an idol in the heart.

  4. Abortion politics are largely irrelevant, except to the culture warriors on either side. I suspect many so-called pro-lifers (code for anti-abortionists who’ve subscribed to the power of positivity and unwittingly adopted an expansive term they can never afford) mistakenly think overturning Roe means elective abortion goes from legal in every nook and cranny of the union to illegal. As you say, though, it just means the power to govern on abortion is returned to the states, most of which will simply continue the status quo. Big whoop. Choicers would see it as a set back since a few would be more restrictive, and since it’s a zero-sum game for them something about a return to the dark ages rhetoric would ensue. But on balance their morality would still enjoy ascendancy. IOW, nothing substantive would really change, which is what makes it irrelevant. Rhetorically relevant perhaps in the culture wars, but not so much in the real world. Can I say all this in the politically correct world of conservative P&Rs (where everyone is supposed to be on board the pro-life bandwagon)?

    • Hey Steve,

      Welcome back!

      We agree that human lives are intrinsically valuable, right? and that, just as the court overturned Scott v Sanford, there is a good to overturning Roe and Doe, right? Don’t you think that we should seek 1) to persuade those who want abortion not to get them but to find an alternative; 2) to persuade those who push women into abortion and, where necessary, create legal protections and barriers to keep coercion from being effective; 3) remove the financial incentives from Big Abortion (e.g., tax dollars funneled to Planned Parenthood) to reduce the number of abortions?

      As I keep reminding folk, Christians have opposed abortion since the 2nd century. This is an ancient and ecumenical Christian conviction, that humans are made in the image of God. It’s also a American thing: “life, liberty, and the pursuit of happiness.”

      Realism about what will happen post-Roe, should that come about, doesn’t mean that we are indifferent about the issue.

    • Because I can not respond to Authors response to this, I will comment here.

      A) There’s no reason to think human lives are intrinsically important, (though personally I do, as I believe it’s biologically to place importance in the lives of my fellow homosapiens.)
      B) Fetal cells are a woman’s cells. She is making them, with her body. They are her life, and they are not independent from her until they are fully formed into an independently living creature that can live separately from her.

      You talk about “changing hearts”, but minds need to be changed, educated. You’re the selfish heartless one, and you’re uneducated which only makes it worse. Ignorance is not innocent. You are ignorant, but you are not innocent. Abortions must be made safe, legal, and easily accessible. Birth control and sex education needs to be valued and openly shared with men and women. Men need more reproductive health care options.

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