Thanks to the recent leak of a drafted Roe v Wade decision, the U.S. Supreme Court likely will ‘never be the same,’ Kelly Shackelford tells Glenn. ‘I just think it’s going to damage the court permanently,’ the President & CEO of First Liberty Institute explains. ‘We’ve crossed that Rubicon now.’ So, with a ‘damaged’ court, what comes next? Well the left already is pushing to pack the Supreme Court — something Shackelford says could be the END of America as we know it: ‘When [court packing] happens, that first time, you’re done. You’re tyranny.’
Below is a rush transcript that may contain errors
GLENN: Mr. Kelly Shackelford from First Liberty. How are you, sir?
KELLY: Great, Glenn. It's great to be you with you.
GLENN: First of all, is it illegal to leak this document?
KELLY: I'm not aware of any criminal violation.
KELLY: Obviously, it's -- it's a really, it's an attack upon the institution of the court. And I don't know if people understand. I mean, the court will never be the same.
I don't know what they're going to have to do now, but the ability of all the justices to have -- these are some of the brightest young attorneys in the country. They bring in new ones.
And the ability just with your own clerks. The opinions you're working on.
I mean, I just think it's going to damage the court permanently. And there's a reason why this has been never happened.
And it's -- we've crossed that Rubicon now. And the court will never be the same.
GLENN: I'm not sure it will change forever, if they put the hammer down on anything that was involved. Wouldn't that send a strong enough message to bring it back?
KELLY: I hope. I mean, number one, are they going to figure out, who it is? I think it's highly likely to be one of the 12 clerks, or the three liberal justices.
I mean, you know, what if, God forbid, it ended up being involved with the justice.
I mean, to me, I think that's impeachable. I just think that people don't understand the -- this is why sort of shooting a rocket, at the Supreme Court, is -- it is something that could -- that we might not return from, as far as the court being able to be what it is.
Which is the ability for justices. I don't know if people know this, Glenn. But what happens is, there's a majority a a dissent. And they voted, just a few days after the argument. They vote. And they start to write on the opinion. The majority writes there. And they share votes.
And people end up being convinced. This is the marketplace of ideas in a different way. It's very important. They want to know what the law is. What does the law really say?
Oh, my gosh. I didn't really think of that. And people switch.
And there's lots to that, that's happened. Where people go to a concurrence, or a consent, or a consent to the majority. And if you can't share the opinions and have that discussion, without people, you know, taking what's being written and taking it out in public, to try to use it as a political tool. I mean, you just destroyed the internal deliberation, going on, and the exchange of ideas.
It's a really horrible thing, what this person did.
GLENN: What about -- what about the idea that it might have been a conservative clerical, that thought maybe they're going to switch to the other side. This will lock them into position.
KELLY: It doesn't make sense on a lot of levels. I understand people think it's really, really cute. Because it locks them in.
Number one, the whole point is that conservatives don't do that. Conservative justices actually restrain themselves -- and no matter what I believe, I'm going to follow what works. What is the original meaning?
The whole philosophy of those people, is not just warp the court into what they want it to be. That's a liberal approach.
GLENN: Right. And that is clear in this -- in this ruling. I mean, that is mentioned several times. That we're not a political body. We can't acquiesce. We have no idea what this is going to do with the American people. But we can't care about that. We have to do what our job is.
And that is to interpret the law against the Constitution.
VOICE: And here's the thing about that, Glenn. Nobody talks about that.
This is a deal. Talk about populism. This is a massive return of power to the people. And away from a few oligarchs who control everything. In a darkroom in the Supreme Court. They weren't supposed to.
It's not the Constitution.
So this is a huge return of power, to people, at the United States. To make their decision, to decide what they think is right or wrong. And not have just a handful of people, tell them what morality is. So it's not talked about that way. But it really should be. This is what the Founders meant.
GLENN: It really is incredible. Because I saw signs last night. Power belongs to the people. And they were protesting. No. That's -- that's what this document says! Now, can -- can this go to -- we know it can now go back to states, as it should be. And they can vote and do whatever they want.
Does this -- can this also just go back to Congress, and have a federal law?
KELLY: They can. They can, if they can pass it. Because, again, the Constitution doesn't speak to it, and therefore it's up to the people. So they can pass a law. But they would -- they would have to do one of two things. They would have to -- you know, in the Senate, get 60 votes. In order to -- it's called filibuster. It's really cloture. They can either get 60 votes. Which they will not be able to do. Or they can destroy the filibuster. And that will be a permanent damaging of the Senate. I mean, the last time they didn't have a filibuster was before Thomas Edison. You know, invented the lightbulb.
So we're talking about. This would be -- change the Senate forever.
Because the reason the Senate is considered probably the most well-known deliberative body in the world. Is because you can't just pass it with raw political power. You have to get some consensus of the other side.
It takes that 60 votes. And it slows things down.
So you only have one party taking over, flipping the country, one major direction to the other. The Senate kind of stops that and makes there be some consensus.
If you take -- if you destroy the filibuster, we're going to see court packing. We're going to see Puerto Rico becoming a state. DC. I mean, we're not going to recognize our country.
I think I've mentioned this before, with your audience, even, Glenn. But if people don't understand -- once you do court packing once, your country is over.
So this is the kind of stuff that would happen, if they do get rid of the filibuster, as Bernie Sanders and others are advocating today. Because they know they'll have to do that, if they're going to push through a new law. A new Roe v. Wade by federal mandate.
GLENN: And is court packing just one justice? Or does there have to be several? I don't know who would go five to five.
KELLY: It's four. They already filed a bill to add four justices to the Supreme Court.
So it would add four. Which would then make the liberals have the majority. And they would just start doing whatever -- basically, like a super legislature. But the problem is within once you do it, the court is over. It's just a subsidiary of the majority party in power. And there's no rule of law anymore. And you don't have any rights anymore. You have whatever right the majority party wishes for you to keep, and that's why --
GLENN: And you never really go back.
KELLY: You don't. You look at -- and people wonder what happened to Venezuela. That's what happened.
Argentina. We can go through lots of countries. People don't understand. But when it happens, that first time, you're done. You're tyranny.
And really, a dictatorship is where you go. So it's something they tried in 1936, '37. FDR did. Because he did not like the fact that they were not getting his new deal through. But even his own party turned against him, before it was over.
And said, this is tyranny. We're not going to do this in this country, and it failed.
But it's very dangerous. And it's something they can only do. If they destroyed the filibuster, which would be what they had to do to pass a Roe v. Wade in federal statute.
GLENN: So that is the thing that, you know -- you know, I'm looking at here.
I'm not sure they released this to do anything, but to pour fuel on the fire, right now.
Why wait until summer? Power fuel on the fire right now. To get court packing done. And the end of a filibuster. I think it has more to do with that, than the judgment from the court. Would you agree?
I think it's both. Probably. They're hoping that they can intimidate one of the justices. This is the beginning of what I've been predicting for months. I think we were just together recently.
And I said, this is coming in June. When these decisions start coming down.
And I think they're going to go for court packing in a frenzy. I think this is going to be their new election approach. Because they obviously are not working well under the current polling, and et cetera.
And I think this is going to be their attempt. And we're seeing just a sort of release of that. In addition to, I hope they can intimidate one of the five justices, that supposedly are on this opinion.
It only says Alito, but, again, part of the leak was that four other justices, not the chief. But four of the other with them. So my hope, is that they can pick off a Kavanaugh, or a Barrett, who will lose their nerve. I don't think that will happen. I think this would entrench them even more. It will just destroy. Everybody would know that they changed their -- their principled opinion, because of pressure.
So I don't think that's going to happen. So I agree with you. Long-term, this is their strategy, and this is what they're going to do.
GLENN: Kelly, can you hang on for just a second?
I want to talk to you about the other cases that are coming up in June, and the impact that they will have.
We will do that in 60 seconds.
GLENN: Kelly Shackelford is on the board of trustees of the United States Supreme Court historical society.
He's earned his law degree from Baylor University.
And he's also the president and CEO of First Liberty Institute.
If you are thinking about donating money to any cause, I can highly recommend First Liberty Institute. They can use your money, and they are winning and actually leaving permanent marks.
It's FirstLiberty.org. So, Kelly, we have been in front of the Supreme Court. We were talking. And you said to me, we're probably more free. By the end of the summer, we will be more free, religiously speaking, than we have been in our lifetime.
You also said, because of Roe vs. Wade, and the other opinions that you think are coming down the pike, that the left is going to lose their mind. What are the other cases?
Well, obviously you've got Dobbs. Which is the Roe v. wade, which we're now seeing the precursors too. And, by the way, the way this works, is the court issues all of its opinions by June, because the session will end. And they will mostly leave the country and speak and teach and stuff. Other places. So the opinions are out by the end of June. You would expect Dobbs to be issued that last week, probably.
GLENN: Hang on. Let me ask you a question. Why don't they just finish it now, and make it official?
KELLY: They might. They might. I don't know how far along they are. Because what we saw was an early draft. But if I'm the chief, I think I might move it along now. And say, we'll get this out quickly. So all this nonsense will stop. But it normally will be late. But in addition to Dobbs. You've got a Second Amendment case, which will be -- I think in favor of the Second Amendment. And against the New York restrictions. On guns.
GLENN: Which will do -- which will do what?
KELLY: It will just bolster the Second Amendment, and say that these types of restrictions are unconstitutional. Because there is a Second Amendment right to keep and bear arms. And this violates that fundamental right. I think you're going to get that kind of -- I think we're going to -- we argue it's a major school choice decision in September. And, you know, it's expected, the way the argument thing. That we're going to win that case.
GLENN: Which would mean, what?
KELLY: Which means any time, there's any school choice program, anywhere in the country, you cannot exclude religious schools or religious choices from the parents.
And that will make clear, that school choice has to be fair. And that everywhere it's going on. And there's a lot of programs out there. The exclusion of the religious schools is over. And so at a -- that will cause a lot of religious schools to come into being, because now there will be resources, that the parents have to choose what they think is best for their kids.
So that will be a big decision. Because the Kennedy case, which we just argued a week ago, Monday. That's a huge case. And it looks like, it's going to be even bigger than expected. Depending upon how they write the opinion.
Again, this is a coach. She was fired for going to a knee after the game, to say a 20-second prayer, thanking God for the privilege to coach the young men, he coached. It's the first time the court has ever had a case, on the free exercise. Or religious freedom rights, of a teacher. A coach. Anyone. So there's never been a decision on this. So it will affect a lot of people that way. But what people didn't expect. During the oral argument within the court the bottom into a discussion about possibly ending the Lemon case. Which has been around for 50 years. And if people wonder why our whole lives, we've seen attacks on nativity scenes, and menorahs, and veterans memorials with religious symbols. And Ten Commandments monuments, and all that.
It's not because the Founders said anything about that. It's because of this really bad case 50 years ago. And it's been the weapon of choice. For secularists now. For 50 years. To wipe our society clean of religion. And it's pretty clear that maybe a majority of the justices are about to say, that's over. And that's a sea change. If that happens as well.
KELLY: So those are just a handful. And there's some others as well.
Finance. There's the border case that was argued this last week. So all this stuff is coming down, at the end of June. And my guess is, the Marxist left is not going to like these things.
GLENN: It is amazing to me, as -- as we are traveling down this road, where the country seems -- the government seems to be going in entirely the wrong direction.
And you're kind of losing hope.
That the Supreme Court now rides in, and is doing remarkable things, that, quite honestly, I think would find favor in the eyes of good. It's -- I mean, hopefully it buys us some time.
KELLY: Yeah. And, you know, what it's doing -- is these justices aren't themselves. Politicians. They don't go one way or another. But they're going back to the original meaning of the texts of the Constitution. Which takes us to our founding.
Kelly Shackelford, president and CEO of First Liberty Institute. You can find it and donate at FirstLiberty.org.
I highly recommend that. That's the thing about constitutional judges, it doesn't always cut your way. Because it's all about freedom, and rule of law.