Preserving Judicial Independence and Challenging Court Packing Threats - with Kelly Shackelford

supremecoup.com
Can court packing really unravel the foundations of American democracy? In this episode of the WallBuilders Show, we tackle this urgent question with the insights of renowned attorney Kelly Shackelford. We dissect significant Supreme Court cases that have shaped the landscape of religious freedom in the United States and analyze the shifting judicial landscape that could herald a resurgence of religious liberties unseen since America's early days. The discussion also lays bare the political threats facing the Supreme Court, and why public and church awareness is more crucial than ever.

The fight to preserve the integrity of the judiciary takes center stage as we examine the contributions of America's first seven presidents and how historical storytelling, like the upcoming Coach Kennedy movie, can inspire and educate. We delve into the motivations behind political efforts to challenge the Supreme Court and the potential ramifications of these moves. The conversation underscores the separation of powers and the foundational role it plays in safeguarding judicial independence, emphasizing why tampering with this balance could have dire consequences.

Lastly, we highlight the critical need for political candidates to be transparent about their stance on court packing before elections. Drawing parallels to countries like Venezuela and Argentina, we explore how expanding the Supreme Court and politicizing the judiciary can dismantle the rule of law. Kelly Shackelford shares valuable insights into maintaining civil discourse and the ongoing battle to protect judicial independence. From personal stories of Medal of Honor winners to the strategic attacks on the judiciary, this episode offers a compelling narrative on why preserving the integrity of the Supreme Court is essential for upholding the checks and balances envisioned by the Founding Fathers.

Chapters

• 0:07 Restoring Faith and Religious Freedom
• 5:20 The Fight Against Court Packing
• 14:01 Ensuring Judicial Independence and Integrity
• 20:56 Preserving Judicial Independence and Integrity

Transcript

Rick Green

you found your way to the intersection of faith and culture. Thanks for joining us today on the wall builder show. I'm rick green here with David barton and Tim Barton.

We're taking on the hot topics of the day from a biblical, historical and constitutional perspective and a couple of hot topics today religious liberty and the supreme court. We're teeing both of those up with Kelly Shackelford when he joins us here in a bit, but but be sure and visit our website today wallbuilders.show for more of the programs and then wallbuilders.com for more resources. Lots of great resources there for you at wallbuilders.com, david and Tim. We're going to, of course, have Kelly Shackelford on, who was the attorney for I guess still is for Coach Kennedy and then also has a ton of other cases that have been before the Supreme Court, a lot of other cases at the district court level right now, and even a lot of times where they go in for clients and negotiate for them and hopefully keep it from going to trial but protect their religious liberty. So somebody that's really really well experienced on these issues and maybe the most experienced with the Supreme Court of any of our friends that we work with.

David Barton

Yeah, I think that's true.

The most experienced and a lot of the decisions they've had have been really monumental decisions that will be looked back in history as we go forward assuming America continues to last. They will be seen as real landscape type of decisions that altered the way we look at things. I think this is the first time really in our generation probably two to three generations that we have the opportunity for religious liberty to start looking like it did in the first hundred years of American history, that we'll have the opportunity to do things in schools the founding fathers did in schools. We'll have the opportunity to do things in public that previous generations experienced. We've been prohibited from doing that because a bunch of progressive judges got in control and shifted everything.

Well, that is now turning back. I think we're on the front edge of it. We don't realize what kind of a tidal wave this could produce, but I think if history continues and we look back two generations now, we will see this generation and the stuff that Kelly did as having shifted the direction of the country in a very favorable direction, having empowered the church, empowered Christians and the public arena to do some things that we generally have not done in 50, 60, 70 years. I think it's massive.

Tim Barton

I mean, you know, dad, as you're saying that, I absolutely agree the significance of what this is. But I instantly thought of the John Adams quote. He said posterity. I hope you make good use of the freedom you have. If you don't, I shall repent in heaven that I ever took half the pains I did to preserve it. And I don't think Kelly feels that way. I think he's so excited about what happened, the opportunity that's in front of us. But what John Adams was pointing out is if you don't make good use of what you have, you're wasting it. And then, from his perspective, he's going what was the point of us doing this if you don't do something with it? And I think really that's part of the challenge that now is for us is what are we going to do to advance and maybe restore some of that foundation, the religious, the moral, the constitutional foundation, to restore things to the way they were before. So many of these secular progressives came in and saying, hey, we don't want God, we don't want prayer, we don't want the Bible. America should be secular, remove this kind of moral framework, remove these moral limitations that we've placed on individuals and relationships and sexuality, et cetera, et cetera. We have a chance now to change the entire trajectory of the nation like we've never had before. But what are we going to do with it? And hopefully we do a good job with it.

I think one of the challenges we face is that so many people aren't even aware of what's happened. Where. We've talked to Kelly many times off air, we're very good friends and he's lamented. He said you know, when we did Restoring Faith in America the website kind of alerting people to the different areas, they can go on offense and they can turn things around. He said I thought this was going to take off and churches were going to get involved.

He said and we really haven't seen the kind of groundswell we had hoped for, we had thought about, and I think partly it's because people just aren't hearing it, the news is not covering it, even conservative outlets they're not talking about these opportunities that are there, and so we definitely wanted to have time to bring Kelly back on talk about some of the good things going on and they're in the middle of some other major issues and challenges as well, because we've seen between the two political parties, the two presidential candidates, a very different perspective of the way to control the future of the nation, and we've seen things from the Democrats, from Kamala Harris aside, suggesting that, and really this came from Biden Harris.

But Harris, although not speaking to the media, not having done any kind of policy disclosure, was very much in favor of this idea of having restrictions on Supreme Court justices, of saying we should come up with with term limits and enforce them and ultimately it's so that they can remove the the more conservative justices from the Supreme Court, or even going back to, like FDR's idea of just court packing let's just throw as many judges on there as we need to help us get our way and Kelly and First Liberty are one of the ones leading the fight on this, and so we definitely, we definitely need to talk through this with him.

Rick Green

All right, quick break, guys. We'll be right back with Kelly Shackelford from First Liberty. Stay with us. You're listening to the WallBuilder Show. 

Break

Rick Green

Welcome back to the WallBuilder Show. Thanks for staying with us. Kelly Shackelford, back with us from First Liberty. Kelly, I know our show today is not about this, but I got to see the screener for the Coach Kennedy movie and I just want to say thank you again to you and the whole First Liberty team or, the funny line in the movie, the Liberty Bell team. That was great. Anyway, you guys, absolutely. I just have to say thank you. I mean, I watched the movie with my family. We were doing a screener so we could start promoting it for the fall, and it just reminds me why you guys do what you do at First Liberty and what a big impact it has for all of us out here, as Americans, to be able to live our freedom. So, man, I just want to start by saying thank you.

Kelly Shackelford

What a privilege to represent Coach Kennedy and to get such a huge victory, and I would just every one of your listeners. They just need to put October the 11th on their calendar and you know it's so important. Those first, like five days determine the total success or failure of the movie and it's going to, it's going to appear in 2000 theaters those first days and, man, we just need to fill the theaters with the people and really get this movie out there big time. It's a great story, Not just the case. I mean even the story of Denise and and Coach. Really powerful story, Really a testimony to the Lord, incredibly good.

Rick Green

And again, I'll take our whole show today on this and we'll get Joe on, I'm sure, before the release to talk about it as well. But we joke about this all the time. Christian quote-unquote movies are cheesy or aren't done well in the past and we're getting so much better at it. This was absolutely, incredibly well done. I mean, is funny the story, like you said, the marriage, the whole, his backstory, I mean I, I was, I was literally crying in the movie, not at the end but but like early on in the movie as it's telling their their life story.

Uh, anyway, I I didn't know a lot about the, the folks that made the movie. I looked up some of of the stuff they'd done with some other movies. But, Kelly, I'm in total agreement with you, man, everybody needs to see this, and it's not just to support the cause. It is an entertaining movie and will make you thankful, so thankful For those who service in the military. He does a great job of doing that. But then just that idea that, man, you serve God and you serve the country in so many other ways, like Coach was willing to do, and like you and Hiram and the whole team there at First Liberty do on the front lines as well. So very, very, very cool.

This case was not your only Supreme Court case. You've had several cases at the Supreme Court, so you know the Supreme Court better than anybody I personally know. And now we've got Biden and the Democrats. They're wanting to pack the court. They're wanting to have these ethics tests for the court. They want to do anything they can to make Clarence Thomas go away. And so you know what's the response. What do we do? And will they do something crazy if they feel like they're going to lose the election as we go into the last few months of 2024? 

Kelly Shackelford

Well, this is the thing, Rick.

I think most people are confused, right? I mean, they know that they're attacking the court. It's just like every day there's a new attack, there's a new bill filed, there's Schumer saying he's going to strip the filibuster away, there's all this stuff. Biden can't get any of these things through, like having the Senate control the ethics of the court. What a ridiculous idea. By the way, can you imagine if the Senate came up with an ethics code and then said we're going to enforce that on the president of the United States? I mean, the president would say you have no authority over here. We have a separation of powers. Same thing with the Supreme Court. So the stuff they're talking about is crazy. And so people were like well, why are they doing it? Because they can't pass it. The House is Republican, the Senate's Democrat, you got divided government. They're doing it because this is the number one thing their base wants the most. They want to dismantle the Supreme Court.

Rick Green

They don't like the campaign thing they're saying, say, offering all these things, not thinking they're going to be able to do them, but actually to turn out their vote better.

Kelly Shackelford

And so look ahead. So what happens if that's the number one red meat? They're offering their base to excite them to get out and vote. What happens if they win and they have the House, the Senate and the presidency? Well, there's only one thing that they can really do without a constitutional amendment and that's pack the court. They can add five, 10 justices, however many they want, and I think it's fairly odd. And then, by the way, you look at Kamala Harris, who's our head of communications. For the last year, Brian Fallon, the head of demand justice, the number one court packing group in the country, spent tens of millions of dollars on it. How did she answer, when she was running in the Democratic primary, to court packing? She said she was quote absolutely open to the idea. And so you just start looking at a lot of the things that are going on and you realize you know what I mean. I don't know what the chance is 25% chance that six months from now we could be over as a country, because when you court pack, you're done.

Rick Green

I mean he could literally double the court and have half those judges now totally his guys and gals. He could have 10 more Katonji Brown Jacksons overnight.

Kelly Shackelford

And it's not. And people tend to think, oh, it's just political, it goes back and forth. No, no, no, you don't understand. Once you do this, the first time, your court is over. The independent judiciary, the third branch is collapsed. It's now just under the political power, because whatever rights you think you have, they can just add four, five, six, ten, however many justices they want to take them away. So every country where they've done this, almost immediately they will devolve into tyranny, for instance, Venezuela. This is how they went off the cliff. Really, since they did their court packing, there have been 45,000 cases that involve the government, and the government has lost exactly zero of those cases. Wow, so it tells you what happened. Same in Argentina. So it tells you what happened. Same in Argentina.

When they tried this in the United States under FDR, the people of the country were much more attuned to political science and how everything worked. Back then they were furious. They said this is tyranny, we're not going to allow you to do this. And even though the Democrats had 80 seats in the Senate, they had massive control of the House and they had a very popular president when they proposed this, the country 1200 letters a day in the Senate on average saying how dare you? And in the next election there was just a massive backlash and it didn't get anywhere near passing.

So people who look at this even just for a little bit understand. This is not a oh, it's my turn, I'll get some more justices. No, you are ending the rule of law Because what happens now is the independence. The judiciary is not independent, it's just solely underneath, it's an appendage of the political power, and so whoever has the political power can control what rights you have, what decisions that are made. They can just add however many justices they want. And the thing that people are shocked by Rick is it's not in the Constitution, so it's just a majority vote. I mean they could pass this.

Rick Green

Well, you mentioned the response back with FDR and maybe that's when he said this, because he is a little bit old, but no, I think it was more like 20 or 30 years ago. But there was a particular senator from Delaware that actually said FDR was boneheaded for proposing such a thing, and then of course, now that it suits his political whims or whoever's telling him what to say when he goes out to the teleprompter.

He is now for it, I guess from the beach. At this point, I don't know. Teleprompters work on the beach. I don't know that, that's working for him.

Kelly Shackelford

And, Rick, I tell you, the thing that's important is people like well, what can we do? And I think the time is between now and the election. This needs to be forced into the conversation. Every person running for Senate, every person running for president, should be forced to answer this question Will you expand the court? Will you court pack? Will you do this stuff? What's your position on this? Because what you don't want is, once we're past the election, it could be too late. If one party has all three, you know we could be done. So if you force this now, though, the American people are against court packing.

Rick Green

Get them on the record during the campaign

Kelly Shackelford

we have a website supremecoup.com, and it says here's why this is a bad idea. And then it says here are things you can do, Real simple things. You know forcing these, you know asking questions to the candidates, and we have a line where you can reach out to your senators. You can do a letter to the editor. You can do memes on your own social media so that other people understand. This is a danger that could be upon us real soon if we don't force this issue out. So there's lots of things that people can do, and I would just encourage them to get involved.

Rick Green

As usual, a great website First Liberty always does this stuff first class, easy to use, folks.

You get there, you can click, add your name, probably get updates as well, but it gets you on the petition to say no to this.

And of course, kelly, you know, man, in a world where we would still have civil discourse and actually be able to debate these things in depth and not just be soundbites, I would love to have a larger court over time with, like, each new president getting maybe one additional one, so that it's not, you know, so few people having so much power. But in this environment there's no way to get that done. And you know saying you know I've been a champ of term limits for not just Congress but define the terms of Supreme Court justice as well. But if you do that now, in this environment, all they're going to do is implement it immediately and try to get rid of Alito and Thomas. So it's just one of those situations where we have to just draw a line in the sand and say don't mess with this, because if these people mess with it, they're going to go exactly like you're talking about the Venezuelan or Argentina route.

Kelly Shackelford

Well, that's their term limits. Plan is, we'll start with guess what Three justices leave the court first Thomas, alito and Roberts. So what a shocker, you know, just so surprising.

Rick Green

Hey, I'm just curious and you may or not know so. So you mentioned Argentina as well. Has Malay been able to dial any of that back or change the go in there? I mean, I know he's done well on the economic stuff and shrinking the executive branch. I haven't followed it that close, Didn't know. If you might know off the top of your head, no.

Kelly Shackelford

I mean it's if. What's. What's amazing is you look at the prosperous. They were right before they court passed and then you just watch them fall off a cliff. Because it really is like we have three branches of government right the executive, the legislative and the judicial and imagine you just collapse. One of the branches, it's no longer there and without that independence of the judiciary and you and I might have a long discussion about term limits for justices I mean, the founders did not believe in term limits for the justices. They thought that that would hurt the independence of the judiciary and they felt like it needs to be independent and they need to make their own decision. But if you take that away and we don't have the rule of law, it's pure power, it's ruled by pure power, and so this is what you see in all these third world countries and again-.

Rick Green

They want to fall apart.

Kelly Shackelford

Yeah, they do, you fall apart immediately.

So people I mean again people tend to be a little naive. If they haven't studied this at all or spent even five minutes thinking about it, they think, oh, they had five justices. Well, the Republicans will come in next time and they'll add five justices. That's not the way it works.

Once you politicize the court, it's done, and yeah,

Rick Green

 there's no check and balance at that point. Like you said it's just becomes part of the political branch and you really enlighten me on even just the. I always think about, like Venezuela or these countries like that, as it being an economic falling apart because of the things that they come in. But it's liberty in law.

So if we don't, have the rule of law and you don't have that confidence that the law is going to stay the same and we're not going to be monkeying it around based on the political whims of the day. Everything else falls apart from there. It's really, really good, man. Okay, so, supremecoup.com, they can go there today, get signed up and, like you said, make it a conversation between now and November Very little time left and get those congressmen and senators on the record as well.

Kelly Shackelford, first Liberty. God bless you, man. Keep up the great work, looking forward to some more victories and let's think also beyond the election. Folks Go help. First Liberty, because I know, kelly, we could spend another hour. You guys probably have 100 cases going right now and, as you've said in our biblical citizenship update that we did, there's so many victories we need to go have as a result of the Coach Kennedy case. In other words, there's so many things we need to go do in all these different communities. So we'll talk more about that the next time we get you on. But love you guys, appreciate you. We'll see you soon.

Kelly Shackelford

 Thanks, rick.

Rick Green

That's Kelly Shackelford. Stay with us, we'll be right back with David and Tim Barton. 

Break

Rick Green

We're back here on the WallBuilder Show. Thanks for staying with us, back with David and Tim Barton and, of course, guys. I mean Kelly always takes a long-term view to this stuff but also, as we were closing out the interview, even in the short term you have to play like chess. In other words, like I think, conceptually, we don't want the court making law for the country. We don't want, you know, necessarily people to be on the court forever. But some of the things that I'm for, like defining the terms of Supreme Court justices, now is just not the time. It's not going to work. If we do it now, like he's saying, it's all going to be designed to get rid of Thomas, who's absolutely the best justice on the court.

David Barton

And before I respond to that, Rick, let me jump back for just a second and just remind people about that movie with Joe Kennedy, and I think it's significant because of the fact we're told in Revelation Revelation 12, 11, that we overcome by the word of our testimony and that's really a story. And one of the things we've done at WallBuilders is we really focus on telling the stories. One of the books we're writing right now. With World War I and World War II, people know the battles but they don't know the stories of the people in it. So we're taking some of the Medal of Honor winners to show you what their story is. People got a view of that when the Hacksaw Ridge came out a few years ago and you saw Desmond Doss, this conscientious objector who got the Medal of Honor. What a cool story that was. Well, that's what the war was built on. Was so many stories and hundreds of Medal of Honor. It so much more interesting.

That decision shifted the legal and political landscape of America and, as Tim pointed out earlier, if we take advantage of it, it shapes the local landscape as well. Shifted that if we will get involved and be aggressive and help him restore those liberties. But coming back to the justices, I think that there's a Bible verse that we have over in Luke 16, 8. And in Luke 16, 8, 16, 9, Jesus comments he says you know, the people of the world are often more shrewd than the people of light. Satan's people often seem to be smarter and more tactical than God's people do, and that's kind of what the left has done here. They know better than to attack the Supreme Court directly, because most professors, even progressive professors, say hey, wait a minute, you don't attack the third branch, that's the independent branch. We rely on that branch. And so they're attacking the Supreme Court. Without attacking the Supreme Court, they're attacking it by saying here's the modifications we need. And the modifications they're pointing out are all their complaints about the Supreme Court. That's now actually gotten back to reading the Constitution, gone back to original intent, restoring the liberties that we haven't had in generations. And so it's a really smart way to do it, because that allows them to complain about the court, allows them to try to get the changes they want on the court, allows them to apply political pressure, which they could not do if they were actually honest in what they were trying to do. So in that sense, they're very wise about what they're doing, but also, in that same sense, our people have to know what's going on, because this is not just campaign.

This is a fundamental effort to shift and get rid of justices who read the Constitution and, as Kelly pointed out, every nation that has politicized the court and made it, where you could elect justices to the court based on the political party you're part of, at that point in time you don't survive as a nation when you lose that independent judiciary.

You have lost that check and balance. The founding fathers intended to be there. You've made them another political branch, so they become like the Senate, they become like the House, they become like the other branches, and then it is purely democracy. And that's where everything starts falling apart, because, whatever your whim is at the moment, we've complained about the fact that it takes these COVID cases. We're now three and a half years downstream where we're getting decisions on COVID cases. That's part of why democracy is a problem, because when you do everything on the passion of the moment, you usually get the wrong decision. It takes that sustained time where things cool off and things calm down and you have a reasoned approach, and that's why you cannot let the judiciary become a political branch.

Tim Barton

Well, and even, Rick, one of the things that you commented to Kelly and he kind of joked, he said, you know we could have a longer conversation about this was term limits. But you know to your point when you're suggesting that we're not necessarily totally anti the idea of term limits, but it's because, from the founder's intent which, by the way, I'm not generally a term limit person, but you can't disagree the founder's intent wasn't that somebody was going to be a judge for 40, 50 or 60 years. That is crazy, that's. There's no way the founding fathers were thinking that.

Because back then, when you were an elected official or an appointed one for that matter you served while you could to help your nation.

But you, you didn't go to these positions to enrich yourself, to enrich your family, to expand your holdings, to get multiple houses in multiple locations. This was something. It was a sacrifice for you. You were sacrificing to be there to serve your country and, just like George Washington, you were eager for the day you could finally go home and just be with your family, be on your farm again and just get back to normal life. But today it's so shifted that people have found they can enrich themselves in so many ways and yet when we then see people saying, well, we should just put restrictions on there. This is one of the most politically motivated ideas for term limits we've ever seen, not based on a more foundationed, rational approach to the original intent, but rather about who can control. And when you see a political party arguing and vying for controlling solely one of the branches of government that they think that branch can determine what's constitutional, what's legal and what's not, that is a very dangerous thing that should be opposed.

Rick Green

It's the height of political expediency. It's no different than changing the rules for how you count electors or how you deal with disputes on electors, because you want it to have a particular outcome in that moment. Right then, rather than this is a good process going forward, no matter which party's on either side of how the circumstances turn out, the system should work the same, regardless of which party happens to be in power. And that's not what these folks are after at all. They're after an immediate political, expedient outcome that they can manipulate with the way that they want to change things. So bad stuff, but thankfully Kelly's out there fighting the good fight. We will definitely have Joe Kennedy, coach Kennedy on in the next couple of weeks, lord willing, and leading up to the movie coming out. Thanks so much for listening. Today You've been listening to the WallBuilder Show.