Last fall, our nation’s highest court welcomed a new justice in Amy Coney Barret, who took the seat vacated by the late Justice Ruth Bader Ginsburg. Justice Barrett’s nomination, as well as some specific rulings from last year, brought into question the role of the U.S. Supreme Court, and how exactly it is supposed to function. (See NC Family’s story on SCOTUS’s Bostock ruling). The U.S. Supreme Court is now in the midst of hearing oral arguments through April, before handing down rulings this summer.
Our friends at Alliance Defending Freedom have argued before the Supreme Court countless times, and ADF senior counsel Denise Harle joins Traci DeVette Griggs on this week’s Family Policy Matters radio show and podcast. Harle analyzes the Court’s new makeup, discusses some cases we need to keep an eye on, and most importantly, explains the exact role of the U.S. Supreme Court.
“The role of the courts in a lot of ways is sort of a passive defender of rights and protector of freedoms,” says Harle. “The courts in a way are often the buffer between the government and citizens. […] The courts are really here to mediate and protect people from having their rights, their confirmed privileges from being taken away.”
But Harle reminds us that the Court is not all-powerful, and should not overreach. “The Court does not make up laws,” Harle continues. “It should not be creating new laws, should not be saying what it thinks the laws should be. And shouldn’t be writing what the law is in a new way that departs from what’s actually on the books. […] The Court should simply state what the law is and make a ruling that confirms those rights.”
Harle shares that there are several key life and liberty cases to keep our eyes on this year. One, a case out of Mississippi called Dobbs “directly calls into question Roe v. Wade.” If the Court agrees to take this case, it would be heard this Fall. “It has to do with Mississippi’s 15-week limit on abortions,” Harle explains. “This will be the first major abortion case to the Supreme Court in several years. […] But to uphold this law would be a serious undercutting of Roe, which would be extremely exciting.”
Tune in to Family Policy Matters this week to hear Denise Harle give us a close-up look at the U.S. Supreme Court going forward.
TRACI GRIGGS: Thanks for joining us this week for Family Policy Matters. President Trump energized both his supporters and opponents last October when he nominated Appellate Court Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg. As a new presidential and congressional term begins, we want to take a look at the make-up of this, the third branch of our federal government—the courts—and what Justice Barrett’s addition to the High Court could mean for the national legal landscape.
Denise Harle joins us today to talk about this. Harle is senior legal counsel with the Alliance Defending Freedom, one of the nation’s preeminent law firms defending religious liberty, the sanctity of human life, marriage, and family.
Denise Harle, welcome to Family Policy Matters.
DENISE HARLE: Glad to be talking with you.
TRACI GRIGGS: 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.
DENISE HARLE: 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. 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 in 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.
TRACI GRIGGS: What do we know about Justice Barrett’s judicial philosophy?
DENISE HARLE: 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. In terms of just her credentials, she clerked for Justice Scalia, and we know a lot about his judicial philosophy. 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. 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.
TRACI GRIGGS: Right, talk about that. Let’s assume that we’ve got some young people who are listening, who don’t really understand the role of the Court. Just in layman’s language, explain what that role is.
DENISE HARLE: Happy to. The role of the courts 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. When the government does something that violates your Constitutional rights—let’s say your free speech rights—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. 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 taken away.
The Court is not a legislature for one thing. The Court does not make up laws, should not be creating new laws, should not be saying what it thinks the loss should be. And it 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. 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.
TRACI GRIGGS: 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 that ADF is working on and watching in particular?
DENISE HARLE: 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. What happened in that case is a college student named Chike Uzuegbunam—he’s an immigrant from Nigeria, and he’s a believer—he wanted to witness on his public college campus. 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 public property.) But he abided by the speech code; he abided by the speech zone. And yet still the campus police told him to desist from peacefully sharing the gospel and threatened him with expulsion.
The college’s argument to the Supreme Court was, “Listen, we’ve stopped violating his rights. The policy’s over. We’re not enforcing against him anymore, so the case is really over; there’s nothing to seek here.” And our argument is, “No, they still owe damages! The government still owed damages if for any period of time they’re infringing on someone’s free speech rights.” The question is whether that’s correct, or 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 as an absolutely interesting one to watch is an abortion case out of Mississippi. It has now been rescheduled and relisted many, many, many weeks, which means something is going on there. 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. Mississippi passed a law with the gestational limits saying abortions can’t be performed after 15 weeks. This will be the first major abortion case to the Supreme Court in several years. This case directly calls into question Roe v. Wade because Roe 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 Roe, which would be extremely exciting. I think to see this Court take a case like that—a challenge to Roe 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.
TRACI GRIGGS: So ADF has also been 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 we’re under attack constantly by state and national pro-abortion groups. What’s the status of that?
DENISE HARLE: 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 commonsense 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.” 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 in our way.”
The problem from their perspective is that the states 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 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 Roe v. Wadeacknowledges 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.
TRACI GRIGGS: 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 step.
DENISE HARLE: 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.
TRACI GRIGGS: Well, we’re just about out of time but before we go, Denise Harle, where can our listeners go to follow the good work of the Alliance Defending Freedom?
DENISE HARLE: We would love your listeners to hop on our website at 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 and our ministries. And even if you’re so led to donate and support our ministry, we would greatly appreciate that. We’re a non-profit, pro-bono group, so that means we don’t have to charge any of our clients for this work that we get to do. We love having ministry friends around the nation who link arms with us and help us make sure that these fundamental freedoms are protected.
TRACI GRIGGS: Well, Denise Harle, senior legal counsel with Alliance Defending Freedom, thank you so much for being with us today on Family Policy Matters.
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