What is the US Supreme Court?

Welcome to Family Policy Matters, an engaging and informative and inspiring conversation about family policy matters. Welcome to Family Policy Matters. Denise Harley, welcome to Family Policy Matters.

Glad to be talking with you. Well, according to a report by Bloomberg, the United States Supreme Court now has three women justices, one black member, six Catholic, two Jewish, and one Protestant, and a six to three conservative majority. Tell us a little bit more about the likely direction of the court now that Justice Barrett has replaced the late Justice Ginsburg. So what I think we know about the current court now is that several of them are committed originalists.

That is probably a word that your listeners have heard, and it's a really important guidepost for judges. It's not the only important criteria, but what it basically means is that the judges are committed to applying the law as it is written, as it is originally intended to be applied, instead of taking an evolving approach or letting their personal opinions affect how the law is applied. So with originalist judges, cases are decided in a way that's faithful to the Constitution, in a way that's faithful to statutes and laws as they're actually written.

And assuming we see this played out and these justices continuing to apply originalism as a majority of the court, we should be really pleased with case law precedent, where Americans are seeing we can rely on what the law says, and we don't have to worry that a judge is going to use their particular opinions to shift things in an unexpected direction that's not faithful to the way our laws are intended to be applied. So what do we know about Justice Barrett's judicial philosophy? Well we know she has a stellar record, and we know this not only from her court decisions but also her academic writing and her teaching. So in terms of just her credentials, she clerked for Justice Scalia, and we know a lot about his judicial philosophy, and she appears to be a very committed originalist, and we know this as well from her confirmation hearings that I hope that most of us were able to watch, because it was really an educational experience. So one thing she said during the confirmation hearings is, a judge may never twist the law to align it to her personal conviction, no matter how deeply the personal convictions may be held, and so she really believes that her personal opinions and convictions do not affect the law, and that's critically important. We've seen that played out in her decisions, where she has been in the minority when she believes that's the correct interpretation of the law, and she's been in the majority otherwise. We've seen very collegial and intelligent writings from her as well, and so I think we can expect her to be someone who is a protector of constitutional rights, which really is the role of the court. Right, talk about that, and let's assume that we've got some young people who are listening who don't really understand the role of the court. Would you just in layman's language explain what that role is?

Yes, happy to. So the role of the court in a lot of ways is sort of a passive, I guess, defender of rights and protector of freedoms, and so the courts in a way are often the buffer between the government and citizens, individuals. So when the government does something that violates your constitutional right, and let's say your free speech right, you have a forum to be heard in the courts of the United States, and then those courts can confirm what your rights are and issue a legal protection for those rights, and in that way curtail the government from overreach, from targeting certain citizens, from taking its power and using it in an unfair way. And so the courts are really here to, you know, some people say call balls and strikes, but mediate and protect people from having their rights, their confirmed privileges, from being taken away. The court is not a legislature, for one thing, so the court does not make up laws, should not be creating new laws, should not be saying what it thinks the law should be, and shouldn't be writing what the law is in a new way that departs from what's actually on the books. So it's a very distinct role, and it's a very different role.

It should be a neutral arbiter where it listens carefully to the arguments of both sides, and then in considering those arguments and looking at the law, the court should simply state what the law is and make a ruling that confirms those rights. Those of us who are watching everything that's going on surrounding the election might have missed the fact that the U.S. Supreme Court is already in the middle of its current term of cases. Are there some cases you're working on and watching in particular?

There are. ADF argued a case last week in the United States Supreme Court, and when I say in, I mean by telephone we phoned in, because that's how the court is protected right now because of COVID. And that was a really big free speech case, certainly one to watch. This case has to do with really whether individuals can hold the government accountable when the government infringes our free speech rights. So what happened in that case is a student named Chike Uzubunam.

He's an immigrant from Nigeria, and he's a believer. He was one of the witnesses on his public college campus, and so the campus had a teeny tiny, what they called a free speech zone, and they had a speech code as well which limited free speech to certain hours. All of that is unconstitutional because it was a public property. But he abided by the speech code, he abided by the speech zone, and yet still campus police told him to desist from peacefully sharing the gospel and threatened him with expulsion. So the college's argument to the Supreme Court was, listen, we've stopped violating his rights. The policy's over. We're not enforcing him against him anymore. So the case is really over.

There's nothing to see here. And our argument is, no, they still owe damages. The government still owes damages if for any period of time they're infringing on someone's free speech rights.

So the question is whether that's correct, whether that even if the violation is over, if you have suffered a free speech violation by a government policy, you can still obtain what's called nominal damages that illustrate that that was a valuable and really priceless right that was taken away from you temporarily. The second case I would point to absolutely interesting one to watch is an abortion case out of Mississippi. It has now been rescheduled and relifted many, many, many weeks, which means something is going on there. So when it's relisted, it means the court sets it for a conference and does or does not discuss the case and then just says, Okay, we need to discuss it again.

That case is called Dobbs. Again, it's out of Mississippi and it has to do with Mississippi's 15 week limit on abortions to Mississippi passed a law with a gestational limit saying abortion can't be performed after the 15 weeks. This will be the first major abortion case to the Supreme Court in several years. This case directly calls into question row because row says that before viability of the baby, a state can't place what's called an undue burden on a woman's ability to choose abortion. And so 15 weeks is before viability as we you know, are able to do it with medical technology right now.

Viability obviously is a moving line. But to uphold this law would be a serious undercutting of row, which would be extremely exciting. And so I think to see this court take a case like that a challenge to row so quickly is surprising to me, at least, but it's also very exciting. If that case is taken, it will be heard next fall, which would mean we would have a decision sometime before June of 2022. So ADF is also representing the leadership of North Carolina's General Assembly in defending several of our important pro-life measures that we've passed in recent years and now are under attack constantly by state and national pro-abortion groups.

What's the status of that? Every woman deserves to know about her options in an unexpected pregnancy. And North Carolina's laws protect women in this way by providing specifics through informed consent, providing a brief informed consent period for the woman to consider the information and for making sure that abortion facilities meet basic health and safety requirements. These laws have been on the books for several years, but earlier this year, or I guess last year now, Planned Parenthood and several other abortionists brought a lawsuit challenging the very common sense health and safety protections for women.

And their argument is that this is depriving them of what the North Carolina constitution calls the right to enjoy the fruits of their labor. So it's an interesting claim because I think the abortion industry is really tipping its hand because it's openly saying, no, we want to do more of these. We make money off this.

This is the fruit of our labor. You're preventing us from doing as many abortions as we want, wherever we want. And we want to use people that aren't licensed physicians.

We want to have more clinics everywhere. And you're standing in our way, essentially the state standing our way. The problem from their perspective is that the state have always had the ultimate power to protect the welfare and safety of their citizens. Of course, a state can make sure medical procedures are performed by those who are qualified and trained. Of course, the state can make sure that people undergoing medical procedures are only doing so after valid informed consent. Even from Roe v. Wade acknowledges the state has a legitimate interest in protecting fetal life and potential unborn life. These are future citizens of North Carolina and the state can make sure that it puts in place at least minimal protections so that that life isn't squashed out without consideration. And we are very grateful for all that you have done on this front, as well as so many other important issues. I do think it's important to state that state laws on abortion are very important because if Roe v. Wade is overturned at some point, that's what's going to happen, right? It's going to throw the onus back onto the states. And so if those state laws are strong, that's at least a good start. Oh, that's a tremendously important point.

Yes. If the day comes when Roe v. Wade is overturned, it simply means there's not a federal constitutional guarantee of a right to abortion. But it doesn't mean that states couldn't permit abortion if they wanted to. And so it's a wonderful thing to see these states putting pro-life laws in place as they've done a fantastic job of for several years now. Well, we're just about out of time. Before we go, Denise Harley, where can our listeners go to follow the good work of the Alliance Defending Freedom? We would love your listeners to hop on our website at adflegal.org. That's adflegal.org. There you can follow along with these cases and all of our other cases.

You can sign up for our Alliance Alert to get weekly updates on some of the key cases on religious freedom and life, marriage and family, free speech. You can also sign up to be involved in prayer for our cases in our ministries. And even if you're so led to donate and support our ministry, we would greatly appreciate that. We're a nonprofit pro bono group.

So that means we don't have to charge any of our clients for this work that we get to do. So we love having ministry friends around the nation who link arms with us and help us make sure that these fundamental freedoms are protected. Well, Denise Harley, Senior Legal Counsel with Alliance Defending Freedom, thank you so much for being with us today on Family Policy Matters.

You've been listening to Family Policy Matters. We hope you enjoyed the program and plan to tune in again next week. To listen to this show online and to learn more about NC Families' work to inform, encourage and inspire families across North Carolina, go to our website at ncfamily.org. That's ncfamily.org. Thanks again for listening and may God bless you and your family.