Understanding the U.S. Supreme Court (with Dr. Jesse Merriam)

Kelsey Reed
Hello, welcome to Concurrently: The News Coach Podcast from World Radio and God’s WORLD News. Our mission is to come alongside you, learning and laboring with you as you disciple kids and teens through culture and current events. I’m Kelsey Reed. I’m here with Jonathan Boes.

Jonathan Boes
Hello!

Kelsey
Together, we want to model conversation and apply tools you can use at home or in the classroom. But before we dive in today, I want to invite you to do two things. First, if you like what you hear, would you please rate and review our podcast? This helps other listeners to find us. Secondly, we would love for you to write—or even better, to record—your current events questions for us to address in future episodes. Most smartphones have a handy Voice Memo app. Record your clip, then email it to newscoach@wng.org.

Jonathan
So here in the United States, the beginning of summer brought a slew of high-profile Supreme Court decisions. We saw the U.S. Supreme Court shoot down Biden’s Student Debt Relief Program and rule in favor of religious liberty for a Pennsylvania postman and a Christian web designer. And all this comes after last year’s historic Dobbs decision, which overturned Roe v. Wade. So naturally, the Supreme Court has been in the headlines. We’ve heard all sorts of claims in news media. Some people say this is a “partisan court.” President Biden was quoted as saying that this is “not a normal court.” So we’re hearing a lot of confusion around the Supreme Court and its role and the amount of power that it has. And listener, your kids and students may have picked up some of this confusion from the news, from the internet, and maybe even from classmates or teachers.

So what we want to do today is, we want to help cut through some of that confusion, so that we can better disciple our kids through today’s world. And for that, we have a guest with us.

Dr. Jesse Merriam is an associate professor of government and pre-law advisor at Patrick Henry College in Purcellville, Virginia. He holds a Ph. D. in Political Science and an M.A. in Philosophy from Johns Hopkins University. His articles have appeared in top law review and peer reviewed journals. And at Patrick Henry College, he teaches Constitutional Law, which will be very pertinent to our topic today. So Jesse, welcome to Concurrently. We’re so glad to have you here.

Dr. Jesse Merriam
Thank you. I’m really pleased to be here. I’m looking forward to the conversation.

Kelsey
We are too. So we’ve mentioned to our audience in the past that our roles at WORLD really allow us to be professional learners. And it is such a privilege. I think, Jonathan, it was your wife who originally used that phrase. And yes, what a privilege to daily have, as our work expression, lifelong learning. And so as we continue to engage in that learning process, we love to start out the gate of every program with trying to establish definitions of what our key terms are, even the key institutions that we’re talking about, which of course today includes SCOTUS, or the Supreme Court of the United States. So what is it? What established it as an institution, and what is its intended role and function? So I want to ask that question to you this morning. Thank you for using this mind of yours to help us to untangle some of these knots.

Jesse
Thank you. Well, that is a huge question, and it’s something that we spend maybe the first month of Constitutional Law exploring. So when I teach Constitutional Law, in the beginning we really just break down the institutions as they’re established in the original Constitution. I say the “original Constitution” because that’s where the institutions are created, and then we get the later amendments that really create new rights and new ways of operating. But those amendments, those 27 amendments, don’t really alter those institutions that were created in the 1787 document. And in the first month, we’re essentially focusing on the judicial role. My Constitutional Law class, like most Constitutional Law classes, begins with Marbury v. Madison, the 1803 decision in which the Supreme Court created what’s often called “judicial review.” So to answer your question, we have to talk a little bit about judicial review, and also what the Supreme Court is as a political body.

So the U.S. Constitution creates three political branches. You have the Congress, which consists of the House and Senate. You have the executive branch with the President as its head. And then you have the federal judiciary. Now, before the Constitution was granted, there was no federal judiciary. There were just state courts. There were state trial courts, state supreme courts, and they were responsible for interpreting their own state constitutions. But once we get the U.S. Constitution, we create the federal judiciary. The Articles of Confederation, which preceded the U.S. Constitution did not have a federal judiciary. The idea was that states would be responsible for their own state constitutional law.

So what does the U.S. Constitution say about the federal judiciary? In Article Three—that’s where we get the federal judiciary—it identifies only that there will be a Supreme Court. It doesn’t say anything about U.S. or federal trial courts or federal appellate courts. Those are created later in the Judiciary Act of 1789. The original Constitution says nothing about them. And it also says very little about the U.S. Supreme Court. It says there “will be” one. It says there will be a chief justice. We don’t know how many justices there will be. And in fact, the first judiciary creates—if I remember correctly, I haven’t taught this now in a year—but I think it’s six. I have to go back and look at some of the early stuff when I prepare for the semester, which I haven’t done yet. But the first Judiciary Act of 1789—there’s another one that comes along in 1801—the first one creates six Supreme Court justices. So what we have is something in the Constitution that says there only be a chief justice, but then by statute, by law, Congress says, “Okay, well, the chief justice isn’t going to act on its own, we’re also going to have other justices.” So that’s the composition of the court.

We also know how it’s going to be created. We’re going to have nominations from the President, and those nominations are going to be confirmed through the Senate. That’s what we now call the confirmation process. And the Senate will be able to weigh in through a simple majority. So if you get a majority of senators who think that this nominee is a good candidate, then that person will be confirmed, and thereby appointed to the U.S. Supreme Court. Same rule for the federal courts that are later created in that Judiciary Act.

And the last thing to know is that the powers of the Supreme Court, and all federal courts, are not outlined. What we now call judicial review had to be interpreted by Chief Justice Marshall in Marbury v. Madison. What judicial review means is that the Supreme Court will be determining when a law is compliant, is satisfied—not violating—the U.S. Constitution. And if it is not compliant, meaning it’s violating the Constitution, it is thereby rendered invalid. So that’s the power of judicial review. It was relatively controversial—the U.S. Supreme Court found it in Article Three—but not so controversial. Some of the reasoning that Marshall employs remains controversial. But the fact that there’s judicial review seems pretty clearly to follow from Article Three, because that’s what state courts had been doing before the federal courts were created. And so it seems to follow that when you create the U.S. Supreme Court, it will be doing the same thing.

Now, just two things to note before we move on. One is that, although judicial review may not be so controversial, what happens after judicial review is. Meaning: Can the President or the Congress weigh in? And in fact, after Marbury v. Madison, President Jefferson at the time, thought that, “Well, Chief Justice Marshall has spoken. But that doesn’t mean I’ve lost my voice as President, or the Congress has lost its voice, because they’re all duty bound to follow the Constitution. So why can’t they all interpret and follow the Constitution as that institution sees fit?” But as judicial review develops, over the course of the next century, it becomes exclusively a judicial enterprise, meaning what the courts say is not only relevant—it’s final. So when the Court said, “There’s a right to an abortion,” there’s nothing that the other branches can do. That was not obvious at the founding. The second thing that we should note is that the scope of the power really broadens in the 20th century. So Marbury v. Madison is this groundbreaking case creating judicial review. But judicial review was not actually used to invalidate a federal law for over 50 years. And in fact, throughout the 19th century, it was rarely used. It isn’t really until you get to the 20th century, beginning in the early 20th century with the so called Lochner Court, which was enforcing economic liberty in a fairly robust way, and then it’s really with the Warren Court that we get the transformation of the way that our political system operates. So we become what some people call a juristocracy, meaning that judicial review has morphed into government by the judiciary.

Kelsey
Very interesting. I think that, living in our times, I had a certain perspective of what the checks and balances of the branches of government, and even between federal and states’ exercise of powers. I had a view, of course, standing in my own time, that this is basically more or less what was intended by our Founding Fathers. So you’re pointing out some very interesting things to help stretch my thinking with more of that historical perspective that there was, it sounds like—and tell me if I’m not understanding it correctly—but it sounds like there was a lot of scope for interpretation, and that it was judicial precedent that really brought us through to the current expression, the layering on of judicial decisions. And that original precedent that you talked about—Madison, you said, Madison and . . . ?

Jesse
Marbury v. Madison.

Kelsey
Marbury v. Madison. That really stretches my thinking because, of course, we stand in our own time. So help me a little bit more then, before we go on to evaluating how this court is functioning, help me to understand some more about what was intended by our Founding Fathers regarding the checks and balances, the balances of powers, or as you talked about, the political powers. I even found that interesting, to hear you use the term “political powers,” because we’ve been wrestling to try to define even what is politics? What does “political” mean? And so please feel free to also use some definition there in terms of your choice of terms to describe these branches and their powers and their functions.

Jesse
There’s certainly a lot of ambiguity in terms of the judicial power. What’s not ambiguous is that the framers designed our system so that Congress would be the most powerful branch. And the expectation was that the judiciary would be, in Alexander Hamilton’s words in Federalist 78, the least dangerous, or least powerful branch. And that’s for two important reasons: It lacks the power of the purse, meaning it can’t fund things, and it lacks the power of the sword. It can’t enforce things. All it has is the power of the pen. So it has the power to issue judgments, but it can’t enforce those through executive action, and it can’t fund those. And this means that when the Supreme Court makes an interpretation, it relies on the other branches. In the original system, the expectation—we don’t know this for sure, and some people disagree—was that courts would have some rule, certainly, but not that it would become the primary authority on our major social issues. And that doesn’t really happen until the middle of the 20th century. And once that does happen—this is under the Warren Court, known as Warren Court because the Chief Justice was Earl Warren—you get a Congress and a president that become submissive to the federal judiciary, and start to use the federal judiciary for cover. By that I mean that Congress really is excusing itself from its lawmaking responsibility. And they get to—the congressmen and women get to—then campaign against the Supreme Court or using the Supreme Court. And they are then not responsible for the decisions that they have been, of course, elected to make. And all that the Supreme Court is being used as is as a lawmaking power. And that’s where we are today.

So, in my view, whether you’re conservative or liberal, the truth is that we are still living under this system whereby the court is exercising a lawmaking power. Now, you may like it sometimes if you’re liberal, or you may like it sometimes if you’re conservative, but the truth is that we have a society that is deeply different from the one that was designed by the framers.

Kelsey
I think this becomes the important place for even defining that idea of politics. What are we doing when we’re, cynically, playing the political game? I don’t mean to be cynical in terms of what I’m saying there. But when we look at what these political powers were intended to do, in terms of their functions, and when it turns into something that is not what was intended, you know, what’s our roadmap back, or what often can be the growing pains as we’re seeking to employ a correct understanding, a balanced understanding of the powers? So even if that’s just a rhetorical question, that seems that that’s the question of the moment is, how do we work ourselves back to a healthy system?

Jesse
Yeah. Well, I don’t think politics is the problem. And I don’t think the judiciary acting politically is a problem. It is a political branch. It’s designed in a way to act on behalf of the public as a political actor. The problem is once partisanship becomes such a significant part of our politics, that’s how you get polarization. And one of the most disturbing trends that we have in the 21st century is that various features of this very large and diverse country are getting mixed into partisan identity. And what that means is that politics becomes partisanship and partisanship becomes a way of dealing with regional, racial, religious divides, instead of those divides perhaps being kind of weakened or tempered by communities and voluntary associations, things like churches, things of that sort. Once everything gets saturated with politics and the partisanship that we have come to be so familiar with, that’s when you start to get into some serious trouble with those divisions.

Kelsey
That is worthy of repetition. And I think that we attempted some of those definitions, at least in one of our episodes with Concurrently, where we made that differentiation between what politics is intended for, and the version of politics that you’re helping us to name again, partisan politics, and even that reliance on certain political factors and factions or parties to negotiate interests that really are best placed in some of those more privatized institutions, like you named. So I’m welcoming into this space for either the listener to redefine those terms with their students and their teens, to reorient. These are things that we are awash with in our culture, and sometimes we need to slow down and redefine what’s going on here. You know, what do we mean by politics? What do we mean by political powers? And how is that different from partisan politics? So you’re really helping us to stretch that out.

Jonathan
So we’re talking about this issue of partisanship, which brings me back to a lot of what I’ve been seeing in headlines over the last few months. People are saying that right now we have a partisan Supreme Court, or even—I think I mentioned—President Biden saying, this is a “not normal” court. So Jesse, when you see claims like that, in headlines or news articles or opinion pieces, what do we do with those sorts of phrases we’re seeing in the news?

Jesse
Yeah, I think that when journalists or politicians use that term, “not a normal court,” I think that they may be right about it’s not being normal, but perhaps not in the way that they’re thinking, right? So the way that they’re thinking, from the context in which I’ve heard the term, is that this Supreme Court is pursuing a political agenda that’s not in tenor with how the Supreme Court should operate. And you see all sorts of claims that the Supreme Court is all of a sudden acting politically. I don’t want to be too blunt here, but that it’s just simply outrageous. The Supreme Court has been acting far outside of its judicial role as prescribed in Article Three, as I mentioned, for decades. I mean, our entire lives have consisted of the Supreme Court creating new rights, expanding and constructing new federal powers that are not explicitly provided for in the Constitution. That has been the way the Supreme Court has acted for the past 75 years. And I can rattle off a lot of case names that have not only been just not warranted by the Constitution, but have just been naked acts of political partisanship. And that’s just the way the Supreme Court is operating And for a very long time, and throughout my education, this was considered the kind of prerogative of the left, that the Supreme Court was something that they would use as an instrument for political power, because they didn’t have the means to achieve it through normal electoral processes.

So Roe v. Wade is, of course, a classic example of this. It was not a big political issue at the time in 1973. There had not been any sort of effort to really resolve the divisions—the divisions actually were not that strong at the time. Some states had legislation dealing with abortion, but it had not risen to really a national level. Neither political party made this a big part of their program. So if you look at Richard Nixon’s political agenda, his platform in 1972, abortion is not there. The Supreme Court created this and changed the way our political parties operate, changed the way our political discourse operates, and it changed it without any constitutional warrant whatsoever, right? So however you read the 14th Amendment, no matter what way you look at it, there is absolutely no credible way of finding anything even remotely close to abortion in there. But Supreme Court nevertheless created that right, and it continued upholding this judicial construction for 50 years, right? That wasn’t until Dobbs that we get the overruling of that.

And that’s just one example. Same sex marriage, right? That’s another thing. There were states that were on board with same sex marriage, there were states that were not. There were state courts that thought that this is something that should be guaranteed as part of their own state constitutions—Massachusetts famously found this in 2003. But there was room for disagreement and the states were reflecting their polities. The Supreme Court withdrew this issue from ordinary political discourse, and it said there must be a constitutional right to same sex marriage. Again, there’s nothing remotely in the 14th Amendment touching on same sex marriage.

So this has been going on for 75 years. And what the Supreme Court is doing now is slightly reversing that trend in cases like Dobbs, but it’s not really pushing back. It’s certainly not creating any conservative rights really. There’s no conservative version of Obergefell or conservative version of Roe. To say this is “not normal” is just outrageous in terms of how the Supreme Court has operated.

There is one thing that I do think is worth mentioning, that I do think is abnormal. The discourse within the Supreme Court is starting to be inflected and imbued with the partisanship that kind of permeates our discourse. You can see this in the opinions, you can see it in the oral arguments, and I consider it extremely unsettling. You’re starting to see the justices act in very acrimonious ways toward each other. And that is a sign of an institution that’s starting to break down. And that is extremely unsettling. But I don’t think that’s what President Biden has in mind when he says it’s “not normal.”

Kelsey
I really appreciate your evaluation of what “normal” is. And again, giving us plenty of context for it, which is another one of those things we are striving to practice as completely as we can. We’re not always able to bring as much context as you are astutely doing for us today. So thank you.

But I am also just, you know, having my alarm bells ring when you say that you’re concerned with some of the behavior of the court from within, and I’d love for you to press into that a little bit more for us. Could you unpack what it looks like to watch the disintegration of an institution? And maybe you could even help us understand, is there any way to correct that?

Jesse
So when institutions break down—this isn’t something I study, but it seems that the breakdown happens relatively quickly, but restoration is the hard part. So breaking down communal trust, breaking down of political community—that can erode relatively quickly. How do you get it back? I don’t know. I think it’s probably analogous to a marriage, right? There are things that can happen within a marriage, that can lead to dissolution very quickly, things like adultery, abuse. Once those things happen, once you have stepped outside the boundaries of what a marriage is, I think getting back in line is probably quite difficult, right? I’m happily married so I’ve never experienced that. But I don’t think that we’re happily married as citizens, right? I think that we have, in essence, the breakdown of a marriage. That’s what red and blue is about, right? Red and blue America means that we no longer feel that we’e part of the union.

Now, it’s one thing to have red and blue America and for people to be given their own space to be as they wish. But that’s not what we have. There’s kind of a forced participation, because we don’t have things like federalism anymore, we don’t have limitations on the federal authority. So we’re kind of all engaged in this enterprise together. But there’s so much friction, so that if we disagree with one another, we seek to cancel each other, we say, “That’s not normal.” That’s a sign of breakdown. When you disagree with someone you try to cancel them. When you disagree with what an institution does you try to delegitimize it. That’s the breakdown of an institution. And you can see this in many different ways in the court. The release of the Dobbs opinion is, of course, a very alarming signal—I mean the pre-release, right? So the Dobbs opinion, if you recall, was released like two or three months before it was officially supposed to be released. That should never have happened. When you get opinions being sent to the public, for purposes of manipulating the voting on the court—that’s why that was done—what you have is a breach of duty within that institution, signaling there’s no longer a mutual trust and confidence binding that institution as a whole. Some of the rhetoric in the oral arguments and the opinions is the sign that they no longer feel that they are operating together as an institution, but rather as warring sides of the blue/red divide.

Kelsey
I really appreciate the clear metaphor of a marriage and what it means to have to strive to keep the health of an institution, of any institution. But it’s clearly seen in marriage, through working towards a mutuality of trust and an engagement with the—you know, the best hope for the other. And when we watch something disintegrate in a relationship, there is a wound, or a failure to operate in the way that it was expected to operate. That is a huge rift. And so I just want to kind of pause and think there about the state of our nation when we do that, as we even consider the state of the court and those issues that you’ve mentioned, with the leaking of the Dobbs decision and just the other behaviors, the internal behaviors of the court.

The concerns that we see are not merely reflective of that institution specifically, but I see how they are reflective of the greater nation, as you have alluded to as well. And I can’t help but think of my history. I love Francis Schaeffer for his studenthood of history and philosophy and watching what happens, you know, what causes the decline of a civilization. His book How Should We Then Live?, I know many of our listeners are familiar with it, because it’s a standard in homeschool curricula across the board. I see it everywhere when I’m at homeschool conventions. But his wisdom, and as he makes observations of history regarding the decline of civilizations, and thinking specifically of Rome and Greece, and what it took for their downfall to occur, and how closely patterned we are after some of the things like Greek city states—I’m not necessarily coming to a question in this, I’m merely pointing towards other historical contextualized observation, and then maybe wondering if I can draw a question out of this, you know, as we look at the state of our culture, of our nation: What should Christians properly even hope for of the Supreme Court, or of themselves in terms of our engagement, our civic engagement? So those are, that’s a two-fold question. What should Christians properly hope for to see from the Supreme Court? Let’s just start there.

Jesse
I don’t think Christians can expect too much out of the Supreme Court, for a number of reasons, in that the Supreme Court does not have the capacity and I don’t think has the authority to try to restore our culture and our communities. And I don’t think the Supreme Court was principally responsible for some of the dissolution that we’re seeing. What I do think is the case is that the Supreme Court is merely reflecting that dissolution, and you’re starting to see it enter how the court makes decisions. I think what Christians can look to the Supreme Court to do is essentially to provide them the space to form Christian communities, to maintain worship communities, and to have the space to be both citizens and Christians at the same time. So I welcome decisions like Masterpiece, the decision dealing with Jack Phillips, the baker in Colorado, the 303 decision, 303 Creative from this past term. These decisions create a stronger religious liberty right to be able to control your own speech and your own property in a way that reflects your religious commitments. But I don’t think we can expect much more than that. And I don’t think we should want much more than that. The Supreme Court is not designed to be a Christian institution. And had it stayed within its prescribed authority, its prescribed Article Three authority, we wouldn’t have the conflicts that we have today between religious liberty and various, you know, equality agenda items.

Kelsey
So we—help me if I’ve got a good illustration here or correct it, adjust it, edit it with your thoughtfulness. But you’ve talked about what it means to have the sword or to have the purse. What we can expect from the Supreme Court is more a defense of our liberties by use of the pen. Is that a good way to think about that?

Jesse
Yeah, so the power of the pen means simply that the Supreme Court can issue decisions articulating the scope of our freedoms, but it can’t pursue a positive agenda of seeking to transform social relations. I think one of the big problems is that the Supreme Court went down that road in going beyond the power of the pen, in not just enforcing negative liberties but trying to make positive adjustments. By “positive” I don’t mean “good or bad.” I mean “requiring action.” The Supreme Court’s role is to enforce negative liberties, the negative liberties outlined in the Bill of Rights, but not to require governmental action. And when it does things like create the right to same sex marriage, what it’s doing is saying that every single state in the Union must change all the laws dealing with marital relations to reflect this new union. That’s a positive right, and that is far outside its proper authority. And once the court goes down that road, then you get the conflicts at issue in 303 Creative and the Masterpiece cases.

Kelsey
That’s very helpful. So as we think about that, in the home or in the classroom, I want to pose this question to you about, what you would suggest to parents and teachers regarding our civic duty as believers, or members of God’s Kingdom, in relation to the judicial branch of government?

Jesse
Well I think—I mean, this is not just on the topic of judicial power. But I do think there is a very unhealthy conflation of Christian and I guess partisan identity. And that’s one of the results of secularism. So if I could just step back a little bit—the Supreme Court, another very dangerous thing that it did, and this is what I was referencing a little bit earlier with the Warren Court, is it created a separation of church and state. This began actually in 1947, but it really took off in the 1960s and ’70s. And it created that separation of church and state, and then imposed that on all the state and local governments. And what that meant is that there could be no school prayer, no sort of religious worship that really touched anything relating to the government, including in public schools. And once the Supreme Court did that, it created a system whereby one political party could kind of identify with the secularist movement. And once the Democratic party went down that road—it didn’t identify as secular or pro religious diversity or anything like that, really, until the 1960s. Once it went down that road, it created an opening for another party to say, “Well, we’re more affiliated with religions, specifically Christians.” And what you get as a result is partisanship becoming enmeshed with religious belief and identity.

And that’s where we are today where the Democrats are not openly, perhaps, anti-Christian. But there is certainly an air of that within the party in terms of its program on homosexuality, transgenderism, and abortion and so on. And the Republican Party is not necessarily affiliated with Christianity explicitly, but many of the voters may see it that way. And I think that creates a partisan system whereby religious belief gets kind of matched on to partisan identity, so that citizens start to think of themselves as perhaps Republicans first, Christian second. And I think we need to reverse those priorities, whether we’re Republican or Democratic, I didn’t mean to single out a party—but to make sure that we’re Christians before we’re anything else. And of course, being Christians, we still owe a duty to the state. But we should, as a matter of priority, make sure that we are Christian before we think of ourselves as members of a state or a political party.

Kelsey
You know, when I think of what it means to be Christian first, one of the major things that I consider is what it means to love our enemy, and to bless those who persecute us. And so that seems very much at odds with an adversarial system. Now that we’ve kind of laid that groundwork, I’m going to rephrase the question in order for us to maybe dig even deeper into, what does that look like? So if it means, as a believer, to be someone who loves our enemy, and who opts out of being an adversary in a political way, what instead does it look like to engage in a civic duty as a believer?

Jesse
Well, you know, obviously people are going to disagree on this. I don’t think it means that you can’t be a member of a political party. And I don’t think it means that you can’t think of yourself as a citizen with political commitments. But it does mean that you have to think about your Christianity above and beyond those political commitments. And if there is an inconsistency, that doesn’t mean you have to change parties, or necessarily change your political beliefs, but Christianity must come first. So we could kind of walk through what this would mean for each political party in terms of their program, but I think there are lots of ways in which each political party has its agenda items that may conflict with Christian priorities.

Kelsey
And I think we’ll move to that place where maybe you help us think about some good analytical questions or evaluative thoughts in a moment. But before we get there, I want to ask if you have any suggested reading or podcasts for youth and teens who might be interested in more on the justice system in particular, or even just on government in the U.S.?

Jesse
Well, this may be a little trite, but the Federalist Papers are always a good place to start. I don’t think they should be treated as the ultimate authority on the Constitution, meaning, once you learn a little bit about the history surrounding the essays themselves, you realize that they are political essays that are designed to be works of advocacy. They were created in 1787 to convince—1777, 1778—to convince the New York State Legislature to get on board with the U.S. Constitution, to ratify it. But it is important to go through those essays and to be familiar with the way that in particular James Madison and Alexander Hamilton—John Jay wrote only a few essays—the way they thought about the constitutional project that we were undertaking as a people. A more modern work on some of the topics we’ve discussed today is Government by Judiciary, written in 1977 by Raoul Berger, and it discusses the role of the Supreme Court under the 14th Amendment. And I think that’s always a helpful book to read for those interested in the nature of the judicial power.

Kelsey
Thanks so much for those recommendations. Now, this question I had written before we started thinking about how to engage in an evaluative manner through our Christian worldview towards our civic duty regarding even voting along party lines sometimes or pushing back against things that are going on in the various parties. So I’m going to try to adapt it a little bit, but I might have to start by reading it outright. What are some analytical or reflective questions that you might suggest that parents and teachers could ask themselves or even their kids and teens, when they’re either looking at the way that our various branches of government function, or the way our political parties function, or even about the way that our justice system in particular functions? It’s basically a question of saying, how do we apply our worldview objectives as believers towards each of these things? And what questions might we keep in mind?

Jesse
In the way that I talk to my kids about the nature of our government and political powers, is really to start with the history. I think we often as, you know, citizens and as Christians too, have great reverence for the Founders. And I think that they deserve that reverence. But we often give it without really understanding what they were setting out to do in the Constitutional Convention of 1787. So I think revisiting that history and thinking about the world that they inhabited is always a healthy exercise, and thinking about what kind of society they were seeking to create, how it would work and how it might not work. And I think the big thing for me, as both a teacher and a citizen, that has had an effect is thinking about where all these powers come from.

So I think earlier in the conversation, we talked a little bit about federalism. It’s important to realize that when the Constitution was created, it was created for under four million people. And there were some concerns that the federal government didn’t have the capacity to govern that many people, because it would mean that, you know, each Congress member would just have too many people under his authority. Well, when you extrapolate from that reasoning, what we have now with 330 million people, to have the same system of governance and the same accountability, you would essentially need each Congress member to be governing something like 800,000 or 900,000 people, which is absolutely crazy of course. So I think it’s important to think about what kind of society they had, and how it differs from the one that we have, and how the Constitution that they created can work in this society that we currently know. And I think they are very difficult questions, in terms of the scale of governmental power. You know, it’s one thing to rule in Marbury v. Madison, to bring it back to the judiciary, that this federal judicial power has the authority to interpret the Constitution on behalf of those four million people. But when decisions on like, you know, same sex marriage or abortion or affirmative action, are made for 330 million people by a simple majority of five out of the nine Supreme Court justices, you have a very different system than the one that Marshall was imagining in Marbury v. Madison.

Kelsey
I think those things are so very helpful. And there are many questions that are embedded in what you said. And I love that you’re referring to conversations that you’re having with your kids. And I’m curious, what kind of questions did they ask you?

Jesse
I have very young kids. When I was saying that I realized, well, maybe I’m exaggerating a little bit. We certainly talk about politics and religion. But I have five young children, so we don’t get too much into the details. I mean, I think I’ve talked to my seven-year-old about the Supreme Court a little bit. And, you know, he sees the articles that I write, and so on. But we haven’t yet reached the point where we’ve had serious conversations about the Founders, other than the fact that my son broke my bobbleheads of James Madison and Thomas Jefferson, and likes to kind of taunt me on the fact that he broke both of them.

Kelsey
There you go, very nice. Well, that brings up, for some of our listeners, just what it means that we are modeling even worldview engagement, that our little people are still sponging a bunch more than we realize, even if they’re not yet at that stage that they’re asking those very particular questions. But parent, teacher, we are excited to explore these conversations with you with whomever you have in front of you, in your classroom or in your home. And we always want to point to the provision that is vast, that is abundant, that we have in scripture, as we seek to frame our engagement of the world well, and anchor it in the Lord’s power for us. So just some of the things that we want to pull out from scripture today to frame our thoughts.

Proverbs 21:3 says: “To do righteousness and justice is more desirable to the LORD than sacrifice.”

Jonathan
Isaiah 56:1 says: “Thus says the LORD: ‘Keep justice, and do righteousness, for soon my salvation will come, and my righteousness be revealed.’”

Kelsey
Zechariah 7:9 says: “Thus says the LORD of hosts, Render true judgments, show kindness and mercy to one another[.]”

Jonathan
And Micah 6:8: “He has told you, O man, what is good; and what does the LORD require of you but to do justice, and to love kindness, and to walk humbly with your God?”

Kelsey
Just as Jesse has been modeling for us today, we do great things to shape the perspective of our families, of our classrooms, of our broader community, in the way that we seek after justice, and that we show that great love of the mercy that we get to express because it has been expressed to us first. So first of all, I just want to say thank you, Jesse, for joining us today. And also, parent, teacher, mentor of kids and teens, we want to remind you: Though the work is big, He has equipped you for the work.

Show Notes

We’re joined by Constitutional Law professor Dr. Jesse Merriam to talk about the Supreme Court of the United States. The headlines call this a “partisan court.” President Joe Biden says it’s “not a normal court.” What do they mean by that? Why does the Supreme Court exist?

Check out The Concurrently Companion for this week’s downloadable episode guide including discussion questions and scripture for further study.

We would love to hear from you. You can send us a message at newscoach@wng.org. What current events or cultural issues are you wrestling through with your kids and teens? Let us know. We want to work through it with you.

See more from the News Coach, including episode transcripts.

Further Resources:

• Looking for a way to start the conversation with your kids? Check out Schoolhouse Rock’s “Three Ring Government.” (Note: This is a YouTube link. The Concurrently team does not have control over other videos YouTube may suggest).

• How do we define “politics,” and how is it different from “party politics?” Listen to our episode on “Immigration, Title 42, and Exodus 23.”

• Read “Coming to Terms with Politics” by Kelsey on the News Coach blog.

• From the Gospel Coalition: “9 Things You Should Know About the U.S. Supreme Court.”

Concurrently is produced by God’s WORLD News. We provide current events materials for kids and teens that show how God is working in the world. To learn more about God’s WORLD News and browse sample magazines, visit gwnews.com.

Today’s episode is sponsored by Covenant College.

Looking for an unapologetically Christian College Experience? Pursuing knowledge transformed by faith, Covenant College prepares students for their callings and careers. Covenant is located on top of Lookout Mountain, Georgia, 20 minutes from Chattanooga, Tennessee. Students who visit are eligible to receive a grant of $1,200. More at Covenant.edu/world.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.