Last Branch Standing

At our local library, my first stop is usually the “new books” display. One title that caught my attention this summer was Last Branch Standing.

As the title indicates, the author contends that the executive branch of the United States government has been “on steroids” in recent administrations. The legislative branch has been gridlocked or capitulating to an assertive Executive. Only the third branch, the Supreme Court, continues to function most closely to historical patterns and practices.

The author, Sarah Isgur, is the host of an acclaimed podcast, Advisory Opinions. She edits SCOTUSblog to report news and offer analysis of the Supreme Court. Whether by podcast, blog, or book, her commentary is informed, astute, balanced, and when she sprinkles in humor, entertaining.

I found the book so fascinating that I could describe it as a legal thriller.

Rejecting the usual descriptors of “conservative” and “liberal” in a 6-3 divide among nine justices along ideological lines, in Last Branch Standing Isgar offers a more nuanced 3-3-3 spread as justices approach rulings with different judicial philosophies.

Moving through 250 years of formative rulings, Isgur traces the “norms and traditions” of the Court to the role and stature of the Supreme Court today. Despite misunderstanding and amid dysfunction in the executive and legislative branches, Isgur contends that the often brilliant (yet, like all of us, flawed) jurists of the Supreme Court continue to responsibly adjudicate the nation’s toughest questions (whether we agree with them or not).

Isgur describes two eras of judicial philosophy, spanning three chief justices: the Warren Court (1953-1969), Burger Court (1969-1986), and Roberts Court (2005-present).

The Warren and Burger Courts, Isgur explains, significantly expanded judicial power. The prevailing philosophy over these three decades was “living constitutionalism.” Supreme court justices in this era posited a fluid Constitution that “evolves and is implicitly amended as society and culture change.” Through this time justices did what they thought best, not necessarily constrained by the express language of the Constitution. (pages 177-178)

In reaction to the activist courts of the Warren and Burger eras, the Roberts Court purports to generally endeavor to anchor rulings in “the meaning of the Constitution as fixed by the framers.” (page 182) For this Court, the standard of interpretation is theoretically not malleable. In this judicial philosophy, the Court is bound by the original text of the Constitution and existing laws as immutable standards.

As a pastor by vocation, the distinctions between the “activist” and “originalist” courts stirred my reflections on biblical interpretation.

Do we approach the Bible as an evolving document with a malleable text to be interpreted and applied as we think best amid societal and cultural change? Or is the truth of the Bible firm and sure through all generations and, therefore, must be understood as the writers, inspired by the Holy Spirit, originally intended at the time of the writing?

The approach of my church family, the Brethren in Christ, lands squarely with the originalists. Forty years ago, we adopted our current Articles of Faith and Doctrine. 26 years ago, in ten Core Values, we articulated our commitment to “value the Bible as God’s authoritative Word, study it together, and build our lives on its truth.” To provide help in this endeavor, in 2013 we provided 10 Guidelines for Reading and Interpreting Scripture.

When we read and study the Bible as the enduring and final authority for faith and practice, not everything is easily understood. Nor do we always want to accept and obey everything.

Dietrich Bonhoeffer explains our reaction (and resistance) this way: ^“[The Bible] is no place which is pleasing or a priori sensible to us, but a place strange to us in every way and which is contrary to us. But this is the very place God has chosen to encounter us.” He admonishes us to persist in humility to “seek the will of God who is entirely strange and contrary to us, whose ways are not our ways and whose thoughts are not our thoughts.”

Everyone who approaches the Bible as the authoritative and reliable Word of God, with a sincere desire to understand and apply the Scriptures as faithful interpreters, will not succumb to the changing views of our culture or defer to our own preferences.

In Last Branch Standing Isgur includes a historical note about Justice John Marshall Harlan (1877-1911), the only dissenter in the infamous Plessy v. Ferguson case in which the Court acquiesced to the politics of the day and gave approval to “separate but equal” education. Justice Harlan’s understanding of the Constitution was vindicated 58 years later when the Court in Brown v. Board of Education ruled that racial segregation in public schools is unconstitutional. With this in mind, Isgur writes:

In 1906, Harlan donated a King James Bible to the Supreme Court. Today it’s known as the Harlan Bible. Every Supreme Court justice has signed their names to the flyleaf of that Bible upon being sworn in to the Court. Alongside their oath of office, it serves as a symbolic promise to ignore the popular opinion of one’s time and remember the future generations that will be judging you instead. (page 156)

The Supreme Court has a principle called stare decisis. Prior Court decisions are to be given great deference and ought to be overruled very sparingly. We do well to apply stare decisis to scripture interpretations that have stood for much longer, even millennia. The impact of the Court’s interpretations is enormous, but the impact of how we interpret scripture—to borrow a line from the film Gladiator—“echoes in eternity.”   

Quotes from Dietrich Bonhoeffer are taken from A Testament of Devotion, page 426. References to documents of the Brethren in Christ Church are available by click-through. Retired attorney Andy Saylor provided helpful comments. Even so, legal references in the post are necessarily broad strokes which would benefit from nuance that space does not permit.