Pres. Biden Issues Executive Order to Study Packing the Supreme Court

This is Jay Sekulow. By executive order, President Biden creates a new commission. This one to study, packing the Supreme Court. Live from Washington, DC.

Sekulow Live. President Roosevelt clearly had the right to send to the United States Senate, the United States Congress, a proposal to pack the court. It was totally within his right to do that. He violated no law. He was legalistically absolutely correct, but it was a bonehead idea. Phone lines are open for your questions right now.

Call 1-800-684-3110. It was a terrible, terrible mistake to make, and it put in question for an entire decade the independence of the most significant body, including the Congress in my view, the most significant body in this country, the Supreme Court of the United States of America. And now, Chief Counsel for the American Center for Law and Justice, Jay Sekulow.

The wonder of words coming back to haunt you, and that's what's happened here. So, Joe Biden back in the 1980s, when there was discussions about changing, when you talk about court packing, you're talking about changing the number of justices on the Supreme Court, famously Franklin Delano Roosevelt. We're going to get into that in a moment.

Try to do that. So, it adds justices to the court, and you add them when, hey, things are not tipping in your favor. And right now, there's a 6-3 majority or certainly a 5-4 majority of conservative justices on the court. Doesn't mean in any particular case how it'll be decided, but there is a conservative judicial philosophy leaning into the Supreme Court. But Joe Biden has put together a Presidential commission on the Supreme Court of the United States. He's done that, created that by executive order. There's a lot in there, including the number of justices, how the court works. But let me pick up on a couple of points that they raise in this executive order as to what this commission is going to be doing. And by the way, it was Joe Biden, after all, who said that packing the court was a terrible idea, boneheaded idea, put the independence of the judiciary and specifically the Supreme Court in question for a decade.

But I will tell you what it did do. When FDR did this, attempted to do it, and then pulled it back, that conservative-leaning court started approving his New Deal legislation. So it had a desired effect whether or not it was ultimately a court packing plan that got through, which it was not. But it sent a shockwave to the court. And Harry, you gotta wonder with John Roberts' institutional issues, would this do the same thing?

Or could this do the same thing? Well, I think it could be partially successful, and I think it would have its most profound effect on John Roberts. Joe Biden essentially has surrendered to the left's venomous and vitriolic campaign to weaken the court, to pave the way, if you will, for the left wing's agenda to be fully enforced throughout the United States.

They see the Supreme Court as the chief obstacle to a progressive takeover of every single lever of power in the United States. Which is exactly what FDR was concerned with. But Andy, in this commission, they're going to study case selection rules and practices. We're going to get into that more in the next segment, but you're talking about the executive could be exercising control over case selection. That's an alarming prospect, Jay, because that's not the business of the executive branch of government. We have three branches of government created by the Constitution that are separate and co-equal, and they're not to be interfered one with the other. You've got the executive branch that needs to stay in its line, the legislative branch that needs to stay in it, and especially the independence of the judiciary. And when the executive branch of government purports to exercise examination into how the Supreme Court picks its cases and the rules that are applied by the Supreme Court in choosing the cases that it's going to hear, that's a dangerous and scary precedent because it undermines the most important thing, and that's the independence of the judiciary.

We'll get back to more of this. Packing the Supreme Court, is that the new option that the Biden administration is going to consider because they can't get their otherwise control of the judiciary? We'll take your calls on this at 1-800-684-3110, 800-684-3110. Guess what? We oppose it. Shocking development. Breaking news alert.

The ACLJ opposes a court packing plan, which would alter the constitutional setup of the Supreme Court of the United States. We'll talk more about that when we come back from the break. in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

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All right, so let me set the stage for you. On Friday, we got an executive order from President Biden. He issued an executive order forming what's called officially the Presidential Commission on the Supreme Court of the United States. It's got a bipartisan group of experts according to the press release. There are some conservatives on it.

It clearly tilts much more to the left. A lot of former Supreme Court law clerks. In addition to legal and other scholars, the commissioners include former judges and a couple of practitioners. The interesting aspect of this, let me read you what the purpose of the commission is. And this should, any of you that are constitutionalists should be very concerned about this.

I mean, really concerned about this. The commission's purpose is to provide an analysis of the principle arguments in the contemporary public debate for and against Supreme Court reform. So either for Supreme Court reform or against it. It includes an appraisal of the merits and legality of particular reform proposals, like adding justices to the court, which by the way, does not take a constitutional amendment, just take an act of Congress passed by both chambers and signed by the President.

So they could do it if they wanted to. I don't know if they'd get it through the Senate, but this is what they're talking about. And then the topics it will examine include the genesis of the reform debate. In other words, why did this Supreme Court reform start? The court's role in the constitutional system, I would think that's what's specified in the United States Constitution. There doesn't need to be a lot of discussion about that. It's been settled since Marbury v. Madison in 1804.

You would think that would about sum it up, apparently not. Then it says the length of service and turnover of justices on the court, could be a constitutional amendment to limit the service length, which turns us into a political branch, which would be a mistake. The membership and size of the court, I don't know what they mean by the membership versus the size, except FDR talked about deputy justices that would be able to vote if the other ones were over 70.

And the court, this is the thing we got to watch the most, I think, besides the numbers. The court's case selection rules and practices. What happens now is called the rule of four. If a case comes up to the Supreme Court, if four justices want to hear the case, it doesn't take a majority. If four justices want to hear the case, they can hear the case. But as I said in the first segment of this broadcast, FDR's court packing scheme failed in the sense that it did not allow for new justices to be added, but it succeeded as far as the factors that it gave to the court approving New Deal era legislation that was getting struck earlier, like six months earlier.

And then all of a sudden there was this change. Wesley, you brought up a point about this kind of implicit intimidation factor. Yeah, not always implicit. I mean, the left-wing Democrats, the left-wing people in the Democrat Party try not only to influence the court, such as what's going on now, but also to intimidate the court. Remember the famous speech that Chuck Schumer made on the steps of the Supreme Court, where he threatened that if they ruled a certain way that they would reap the whirlwind and they would not know what hit them. So they're not bashful about not only trying to change the makeup or influence the court, but also intimidating the court. And it's alarming the agenda that they not only think that America is a defective place and that our Constitution is a defective document.

They think that somehow the Supreme Court of the United States, which has worked well for a long time, is also defective too. Well, I want to first talk about the politics of this. So interestingly, this isn't a House-Senate commission. It's not a House committee or Senate committee. This is a commission set up by the Presidential commission.

Yeah. And Jay, really the purpose of this commission, in my view, from a political perspective is to convince all 50 members of the United States Senate, because that's the biggest hurdle they have to accomplishing this. So Jay, I think the commission is really just aimed to try to convince those senators, Democrat senators who are on the fence.

But look, I would make this comment. You read in the description of this commission that it is bipartisan. Jay, the word bipartisan in that description is doing a whole lot of work. I went through this list of commissioners this morning, and I will tell you this. I don't think it's a stretch to say that this is a commission with a predetermined conclusion. So if this is the excuse that Senator Sinema or Senator Manchin used to support court packing, Jay, it is a very thinly veiled excuse. They need to be very careful about that.

So one of the things, we're going to get to each of the breakdowns of what they're going to look at. But Andy, the thing that just jumps out at us is this, the court's case selection rules and procedures. The court sets those. There's not a certiorari rule of four set by the Congress or by the President, but the court determines its own rules on the basis upon which it will review cases and case selection. And that line, the commission will review the court's case selection rules and practices, I think has the executive really interfering with the judicial branch.

Well, that's the scary part of this, Jay. The idea that the executive branch of government, the President and the administration, is going to look into how the court picks the cases that it's going to hear absolutely ruins the balance of power established by the Constitution of the United States in the 18th century and which we have functioned along since the founding of the Republic and the confirmation and the affirmation of the Constitution. There is no business of the executive branch of government to determine how the Supreme Court picks the cases it's going to hear. That startles me.

It terrifies me. It upsets me terribly as a constitutionalist, historian and a scholar and a practicing lawyer that the President of the United States and his administration or the executive branch of government is going to tell the chief justice and the associate justices how you're going to pick your cases, who you're going to pick, which you're not going to pick. That's none of their business quite put simply. But they're trying to make it their business. I mean, Andy, this is a commission that's got an agenda. I mean, they've been given an agenda here.

Oh, there's no doubt about that. The agenda is to do exactly what President Biden wants to do and that's to grow the federal government, especially the executive branch of the federal government, at the expense of the other branches of the government. I mean, a Presidential commission on the Supreme Court, that would have been unheard of under even President Kennedy. I mean, what do you mean a Presidential commission on the Supreme Court? What business is it of yours to inquire into the business of the court? It is a veiled attempt to expand the power of the executive branch of government beyond the limits set by the Constitution.

And it's not very veiled attempt, as Stan said. You go through the list of these potential commissioners and it's scary. Left-leaning academics, Harvard, Yale, Oxford, Princeton, these academics who have written on leftist subjects who've never been in a courtroom and practiced law in their life. Politicians in robes, as Senator Kennedy called them. It's a scary prospect and one that should alarm constitutional scholars and constitutionalists. People all over the country, very much so. Jen Psaki, the press secretary for the White House for the President, was asked about this at a press conference. Take a listen. President Biden once said in 1983, he thought court packing was- No, time-back machine.

Oh yeah. He said he thought that court packing was a bonehead idea when FDR tried it. So why ask a panel now to go and see if it is a good idea? Well, first, the panel is being asked to do a number of, take a number of steps, including the pros and cons on exactly that issue. But they will also be looking at the court's role in the constitutional system, the length of service and turnover of justice on the court, justices on the court, the membership and size of the court, and the court's case selection rules and practices. And the makeup of this commission, which was vital for the President, what is, there are progressives on the court, there are conservatives on the court. People will present different opinions and different points of view.

And then they'll have a report at the end of 180 days. I want to repeat something she said. She doesn't deny that this is about court packing. The question was court packing. In other words, adding justices to basically get your way.

And she doesn't deny that. She said the panel is being asked to do a number of things to take a number of steps, including the pros and cons of exactly that issue. The question, Harry, of that issue was court packing, adding members to the court. Absolutely. So this is simply a surreptitious effort to engage in what Joe Biden has labeled a boneheaded idea.

That's number one. Number two, this constitutes an attempt by the executive branch to make the Supreme Court in particular, a secondary branch. Imagine the Supreme Court committing, sorry, creating a commission to examine executive power. So essentially what Joe Biden is attempting to do is to dissolve the notion that there are three co-equal branches of government.

Instead, he wants essentially absolute power. I would think that John Roberts is the chief justice of the United States would take offense to this and take offense to it because it's exactly what Professor Hutchinson just said. And that is the idea that the executive branch is going to look at how the Supreme Court decides to take cases. Forget the tenure of the justices for a moment, forget the number of justices for a moment, but the internal working and practices of the Supreme Court of the United States as if the executive branch through a commission could do this. I don't think there's a lot of these things to be done without a constitutional amendment, frankly. But the point is that they're looking, they're digging deep. Now quickly, fan, has there been any congressional response from this yet?

I mean, it just happened Friday. Listen, Senator Rubio and a bunch of others, Jay, it's trying to preempt this. They have a constitutional amendment introduced that would limit the seats to nine. So yeah, there is action and I think there might be some action in the states as well. You know, you need to support the work of the ACLJ. We're bringing you this information, bringing you this analysis.

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How are you reacting to this, 1-800-684-3110? Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life. Request your free copy of Mission Life today online at ACLJ.org slash gift. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. Whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy, and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's matching challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes 100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support. Take part in our matching challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Tom Hanks.

Hey, welcome back. So we've got a commission now being established by the President, a commission on the Supreme Court of the United States. One of the things they're gonna do is look at the historical background of other periods in the nation's history when the Supreme Court's role in nominations and advice and consent process were subject to critical assessment and prompted proposals for reform.

Now, there were some in the 1850s. The biggest one, the most historically noted one, Andy, of course, is the court packing plan of FDR. But let's put that in historical context of what was going on. What was happening, Jay, was that the President had gotten a big reelection victory in 1936, and he thought he had a mandate to rule that was sweeping and all-inclusive. And among those was these New Deal legislation that he put into effect in all the laws that he passed or through Congress passed through his efforts and his initiatives. And what happened is that a largely conservative Supreme Court was ruling that those New Deal-era legislation pieces were unconstitutional. And Roosevelt said, well, I can fix that. And he introduced what was called the Judicial Procedures Reform Bill of 1937, the idea of which was it gave the power to the President to appoint an additional justice to the United States Supreme Court up to a maximum of six that would have made 15 justices for every member of the court over the age of 70 years and six months, okay? The Judiciary Act of 1869, which had been in effect at the time and still is, says one Supreme Court chief justice and eight associate justices. Well, what Roosevelt's plan did was cause the ire and the wrath of Democrats, his own party. John Nance Garner, the vice President of the United States, called it an absolute outrageous attempt to pack the court. And even, and I think this was very interesting because I've done some little research on the subject, Henry Ashurst, who was Democratic chair of the Judiciary Committee, held up President Roosevelt's bill in the committee for 165 days. And he was a Democrat. He said this committee is not going to be rushed into anything. No haste, no hurry, no waste, no worry.

That is the motto of this committee. When the President of the majority leader of the Senate died, who was a Democrat, the bill lost its power and eventually it failed. But what it did, as you pointed out earlier, is it caused a lot of the justices to say, well, we better watch out because they're coming after us. And a lot of the New Deal legislation was passed as constitutional, that is, by the Supreme Court. But by then, the Supreme Court justices had retired and a majority of them were appointed by Roosevelt.

But the plan failed miserably. And that is a lesson of history that we have got to realize today. Keep it at nine. Justice Ginsburg said that. It has been historically the case.

It is the appropriate number to keep. It has been tried and tested through time. Don't make these judges politicians. But, Harry, it did fail.

I mean, and he's right. They did not get the court packing plan through Congress, which, by the way, you didn't take a constitutional amendment to add justices to the court. It's an act of Congress then signed by the President. But it did impact, the Supreme Court historians believe, it impacted the outcome of a series of cases involving the New Deal where the cases were going completely the other way just months before. And then when this discussion took place and became this robust discussion throughout the country, shockingly, decisions started folding in favor of President Roosevelt's New Deal.

Precisely. A number of those decisions were five-four decisions. And so that birthed a particular saying about the court, a vote change in time saved nine. In other words, by moving five to four in favor of President Roosevelt's proposals, that saved the rest of the court from being fully influenced by court packing. But it placed implicit pressure, if not explicit pressure on the court, and the court moved left.

Essentially, the court accepted the largest expansion of the executive branch in U.S. history, at least up until that time. And this is precisely the avenue, the road down which Joe Biden wants to go now. But by the way, there's well-known Democrats, including one of our one of our associate producers pointed out that Harry Reid, former Democratic majority leader then, said we better be very careful in saying that we need to expand the Supreme Court. Quote, I think we should be very, very careful in doing so.

I have no problem with the commission. But I think that the commission is going to come back and disappoint a lot of people because I think they're going to come back and say we should kind of leave it alone. I think it would be inappropriate at this time after the long history we have in this country to have term limits for judges. I think we better be very, very careful in saying that we need to expand the Supreme Court. And I think Harry Reid is right.

I rarely say that. However, West has taken a good look at this commission. And this commission, if you were just taking a Democratic vote in the little D Democrat, or a big D Democrat, actually, Democratic process, skews in one direction. Let me put it that way.

Oh, absolutely. And we all know that academia, for the most part, has moved far, far, far to the left. And looking at the makeup of this, you know, there are eight supposed conservatives on this commission. The rest of them are liberal Democrats. But looking through the makeup of it, there's one former federal judge, Thomas Griffith, there's one executive from the NAACP, and then Michael Waldman, who is the head of the Brennan Center for Justice at New York University. Other than that, all of the other 33 members are professors. And academia is far to the left, you know. And I don't mean to disparage professors.

I have some great people. But here's the deal, you know, why not put some judges and practicing attorneys on this commission? Why not put a couple of members of Congress who have served as judges in the past?

But none of that is there. And without disparaging professors, you know, I would have a person who has experience arguing in front of the court ahead of someone who simply has a theory. And these 33 professors, most of them left-leaning, they have a lot of theories about the Supreme Court, not much experience. You know, Fan, to change the number of justices, people need to understand this, it does not take a constitutional amendment. Does not take a constitutional amendment, takes an act of Congress. And, Jay, you read the quote from Harry Reid.

I think he's large, right in large part. I do disagree with him on one very important point, though. I don't think the commission is going to advise to leave this alone.

I'm with Wes. I look at the members of this, and I think they'll come back and actually advise court packing. And that will be the excuse that President Biden tries to make to push it. But, Jay, your analogy about members of Congress, exactly spot on. This would make the Supreme Court more like Congress. Do you think the American people want the Supreme Court to be more like Congress? No. I don't think there's a chance they do. But they're not putting this commission in place, Harry, because nothing will happen.

Absolutely not. So, essentially, this is an extension of the raucous 2018 campaign to disqualify Judge Brett Kavanaugh for the United States Supreme Court. That effort was provoked by fear that Planned Parenthood and its license to define one's own authenticity as a private project might be overturned. And then the level of hysteria has gone up ever since President Trump nominated Judge Amy Coney Barrett to the United States Supreme Court.

So, the left sees the United States Supreme Court as the chief obstacle to a complete takeover of every aspect of our lives and all of the American people. All of our listeners should be engaged in opposing this particular effort. So, we're going to, obviously, monitor this really, really closely. In fact, we've got a team in our Washington, D.C. office that's already putting together a very lengthy memo of everybody that's on this commission.

I'm holding it up in my hands right now. This was produced by Dan Bennett's team up in our D.C. office today. We're on top of this. Your support of the ACLJ allows us to get on top of these issues and report back to you with concrete ways to handle it. Support the work of the ACLJ and our matching challenge campaign at ACLJ.org. That's ACLJ.org.

Back with more in the next half hour. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. For a limited time, you can participate in the ACLJ's matching challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org.

Live from Washington, D.C., Sekulow Live. And now, Chief Counsel for the American Center for Law and Justice, Jay Sekulow. So, President Biden has signed an executive order creating what's called a Presidential commission on the Supreme Court of the United States. We're calling it the Presidential commission on how do we pack the Supreme Court. And when we say pack the Supreme Court, I want to define what that means early on because there has been attempts in our nation's history to do that. We have nine justices. That's by legislation. It's not mandated the number in the Constitution of nine. So, the question is, Andy, here, when we talk about court packing, let's define this for the audience. Okay. Court packing is something that really was the phrase was coined in 1937 by a person whose name was Edward Rummelly.

I've looked this up. This was an attempt by President Roosevelt to react to the Supreme Court declaring unconstitutional much of his New Deal legislation. Roosevelt was saying that it was impinging upon the power of the Congress and that they could not do this. The administration was becoming absolutely humongous and gargantuan and the acts of the New Deal were taking over and violating the Constitution of the United States. That's what the Supreme Court was saying.

So, Roosevelt said, I can get around this. And so, he put forth the judicial procedures reform bill of 1937. And what it did was it said that if passed, the President had the power to appoint an additional justice to the U.S. Supreme Court up to a maximum of six additional justices. That would have given us 15 judges for every member of the court over the age of 70 years and six months. Now, the Judiciary Act of 1869 had said no, nine justices.

One Chief Justice, eight Associate Justices. So, the Congress of the United States reacted against this in many ways. John Nance Garner, who was the Vice President, and Roosevelt's Vice President, said, not a good idea. The Chairman of the Senate Judiciary Committee at the time, a defendant, a Democrat, said this wasn't, he should have been a defendant, too long a prosecutor, said no, not a good idea.

Held up the bill for 165 days. But, so that ultimately the bill failed. And the idea of packing the court with justices who hold your political views and who don't do what the Constitution says is what court packing means.

Pack the court up with politicians in black robes and they will do what you want the President and the administration wants. That has failed. It failed in our history. It's going to fail, I trust and hope again, with this scheme that President Biden is putting forth.

This is a Presidential Commission not to advise him about this, that, and the other that set forth in the mandate, Jay. This is a commission that has been established to advocate court packing a la FDR. Is there an appetite for any of this than in the United States House or Senate? There's definitely an appetite in the United States House, Jay. I mean, Speaker Pelosi has said that she's for that. And look, there is an appetite in the U.S. Senate. The question is, is an appetite enough? And I honestly think this conversation, the one we're having with our members right now is going to play a big role in whether or not there's a big enough appetite.

And Jay, I just want to look back for a minute. You remember the campaign for President, of course, Joe Biden spent basically the entire campaign refusing to answer the question what he would do on this issue. So you're entirely correct that there can be a legislative change to the number of justices. But Jay, the person who's putting this forward now refused to go to the American voter and give us his position on it.

That was entirely inappropriate. Yeah, well, let me tell you what he wants to do now. Here's the topics that will be examined, includes the genesis of the reform debate, the court's role in our constitutional system, which again is set forth in the Constitution, not too hard to figure that one out. The length and service and turnover of justice on the court, lifetime appointments, maybe they want to amend that. The membership and size of the court, that's the court packing. And then this is the one that got me just as equally worried. And the court's case selection rules and practices.

Because what is the executive doing telling the judiciary how to run its operations? We're going to talk about all of this and more. Take your calls at 800-684-3110. Get your comments in as well. We're going to fight back on this, folks, because this is kind of home cooking here. You know what the result's going to be. You can have all these meetings, you know where the result's going to be. Support the work of the ACLJ and our Matching Challenge Campaign at ACLJ.org. That's ACLJ.org. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. Whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy, and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support.

Take part in our Matching Challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Another tidbit of information about this court packing scheme. It came up a lot during the debates and Joe Biden was asked about this and he gave responses like this. He said that Trump always wants you to take the eye off the ball, change the subject.

I'm not going to play his game. So he blames not answering on Trump. He said that taking a stance right now on whether as President he would seek to increase the number of Supreme Court justices would play right into the hands of President Donald Trump. Then in Arizona, he said voters will know my opinion on court packing when the election is over.

Harry? Well, Joe Biden, Joe Biden is famous because he doesn't want to take responsibility with respect to hard decision-making. He wants to present himself as a pleasant, nice guy. But the reality is Joe Biden is now being fully controlled, if not managed by left-wingers.

And so he may present this pleasant, likable demeanor to the American people. But at the end of the day, the Joe Biden administration is governing as a far left administration. They recognize that the chief obstacle to continued progressive change leading to, for instance, the Green New Deal, to National Socialism, perhaps with the tinge of the Chinese Communist Party, that obstacle is the United States Supreme Court. And so they are intent, in my opinion, on packing the court as soon as possible. Here's what Justice Breyer, appointed by President Clinton, thinks about court packing. The rule of law has weathered many threats, but it remains sturdy. I hope and expect that the court will retain its authority, but that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics.

Structural alteration motivated by the perception of political influence can only feed that latter perception. Talks about trust, right? Trust, we have nine members of the court.

And then in an interview, this is number 26, Joe Biden, once again, when he was running, was confronted with this trust issue and this issue of court packing. Take a listen to this. Well, sir, don't the voters deserve to know?

No, they don't. I'm not going to play his game. He'd love me to talk about, and I've already said something. Right there. No, the voters, Wes, don't need to know. Yeah. And my concern- Which by the way, now you know.

Yeah, exactly. But my concern is not only his dishonesty and his avoiding the issue back then as a candidate, but I think quite frankly, that what he is looking for, because he's not a man anymore, if he ever was, of strong principles. I think he's looking for this commission to give him political cover. I think Harry Reid is wrong in the point when Harry Reid says he doesn't think they'll come back and recommend this.

I think they will. And Joe Biden will say, well, folks, you know, it's what the commission said. I guess we're going to go along with it because he lacks principle. Now the commission, Andy, doesn't have the authority to implement anything. They would still have to either work through the constitutional process, which in some cases might require just legislation and other cases may require a constitutional amendment.

That's right. This commission says, and it says in its birth bill that President Biden signed, that it has no substantive rights or nothing that can come from it becomes legislation. That's got to go through the Congress. But the impact of it with all these alleged professors and scholars who are on it can be great. And I agree that Biden likes to give the idea of a benign, avuncular figure who's kind and middle of the road, but he is being completely managed by the left. He is completely being managed by the progressives. The fact that he picked this commission and who the members of the commission are, and I looked at it, that's a startling and alarming array of people. Let me tell you, he's going to come across, I know ultimately with the recommendation that we do this, that, and the other to the Supreme Court and start messing with a court that has stood the test of time since the beginning of the Republic and which could be a terrible thing.

But I fear for the future of the Supreme Court with a Biden administration. Let me go to the phones here. 1-800-684-3110. Julie is calling from California on line one. If you want to talk to us, you can call us as well.

800-684-3110. Julie, go ahead. Thank you, Jay. I have a few comments. First of all, people want to say, what can we do about this? With your matching challenge, the biggest thing we can do as individuals right now is give your ACLJ money because you can actually speak to the senators and the representatives and do something about this. My question is, is there any other branch of government that can create a commission to study the President's role in telling them what the Supreme Court should do, or can they initiate a lawsuit, or can the ACLJ get a bunch of money? You've raised a really important issue, Harry.

I'm going to go to Harry and Than on this. And this idea of separation of powers that the executive branch, and I want Andy's comment on this too, that the executive branch is looking at this, they probably have the right to look at it because a commission could do anything. But it really infringes on separation of powers when you start saying, we're going to look to see how the court makes its case selections, its rules, and its practices. Absolutely.

So there are several things going on at once. First, I think President Biden would have been well advised to ask Congress to create a commission to look at this because it's within the Congress's power and purview to change the United States Supreme Court. Number two, I think if you actually look at the commission created by Joe Biden, it doesn't carry with it any positive indications that it is indeed trustworthy. So essentially it's a political exercise. And I think Justice Breyer was absolutely correct that the reputation of the Supreme Court is grounded in trust, but this trust will indeed be undermined.

Why? Because Joe Biden has always proven himself untrustworthy. Yeah, but the impact of this though is already being felt because you know, Andy, this is being discussed and we'll get particulars from Than in Washington, that this has happened. It was an executive order. It was a big deal.

It was made about it on Friday. This was, he said, I'm not going to tell you my position until after I'm elected, lies if we couldn't figure it out. Now we know.

Now we know. I mean, I knew exactly when he was asked the question that he would never answer it because if he answered it, yes, he should stay nine. Then his progressive left wing supporters would be furious. If he said it should change, then he was going to take a position that, or that it should stay the same. Then he was going to take a position that was consistent with a conservative leaning or a constitutionalist wing. So he's not going to do it because he's not a man of principles.

In essence, when it gets down to it, he does not have the intestinal fortitude that it takes to make the hard decisions. So he appoints commissions. And I think what Harry Hutchison said earlier is very interesting. John Roberts should appoint a commission to examine the executive branch of government in light of the Constitution or ultimately rule that anything that was ruled on by the Supreme by the Congress, if they come across, could be unconstitutional as well. So the Supreme Court ultimately may hold the key to its own life. But those are the kinds of things that are going on in Washington right now and that we have to be cognizant of. Leave the Supreme Court alone. But don't, I mean, I sense, Wes, that the problem here is that this, based on your analysis of the group that's been put together here, they're going to suggest major changes. I mean, major changes. As far as that goes, I think the cake is baked. And if they were to go through with this, if Congress were to go along with changing these aspects of the court, it takes the only branch of our government, which is by design and theory, nonpolitical, and not only makes it political, it makes it blatantly political.

It becomes basically a third political branch of the government. That should alarm every American. I want to, let's take Frank's call on line two here. Now, I'll tell you what, Frank, hang on the line. You're going to be our first call when we come back from the break.

Fan, let me go up to you then. We're getting a lot of calls about what Congress can or cannot do here. This is all new. I mean, let's go over again what Marco Rubio has proposed, but he's talking about a constitutional amendment. Sure. Well, if you're going to court pack, the Congress would have to pass a piece of legislation to add judges, but they can act preemptively, Jay. And that's what Senator Rubio wants to do.

He's got a constitutional amendment that would limit the seats on the Supreme Court to nine. I actually think momentum for that is going to build. And by the way, that effort could begin in the States as well. I know that Oklahoma majority floor leader, John Eccles, has talked about something similar. We've had conversations with them. So I actually think momentum will build on the other side of this.

And here's the other component of it, Jay. Politically with the mass of the electorate, this is going to be wildly unpopular. Yes, it's going to be popular with the left base, but Jay, when it comes to winning elections and actually putting seats in Congress in both the House and the Senate, this is not an idea that's going to be popular. And honestly, I think many people in Washington, DC know that's why they're a little nervous. But the commission, as Will points out, is going to be holding public meetings. So it's going to try to look like congressional committees.

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Give a gift today online at ACLJ.org. Hey, welcome back to the broadcast, everyone. A lot of this court packing discussion and now this commission, I think, has got political payback, in a sense, for the nomination and confirmation of Gorsuch, Kavanaugh, and especially Amy Barrett at the end of the President's term. That is what's bothered them.

And there's now a 6-3 conservative majority in most cases. A lot of cases it's 5-4. In some cases, it can go the other way.

You never know on an individual case. But it does tell you why they're doing this. And then Joe Biden's saying, well, I wasn't going to announce it during the campaign because that would get everybody all nervous.

But that's what I plan on doing. Again, a lot of concerns. Last segment of the broadcast, by the way, 400 unfilled slots in this administration right now.

And instead, they want to turn their attention to see how the executive branch can interfere with how the Supreme Court selects cases. Let's go to Frank who's calling in Florida on line two. If you want to talk to us, 800-684-3110.

Frank? Thank you for taking my call, gentlemen. My question is this. With Senator Marco Rubio's proposed amendment, is there a majority or something that states about two-thirds of a majority of the 50 states to make it a constitutional amendment? This is, look, a constitutional amendment is a very difficult process, Stan. And I'm not saying it's not a worthy effort, but you have to get two-thirds of the 50 states. You got to first get it through the House and Senate and then two-thirds of the 50 states. Yeah, the threshold in the states, 38 states have to ratify it, Jay.

It's a threshold that's very high. Although I will tell you, if you see the federal government starting to push its bounds to this extent, this might be the kind of thing that would give it momentum. And I would just tell you this, at least on a messaging issue, Jay, that's where the Senate needs to be focused on Marco Rubio's bill. Yeah, but, you know, it would be a lot easier than for Andy and Harry to talk about this. A lot easier to do would be get legislation through the House of Representatives then up to the Senate that just goes from nine to 13.

Andy? Well, I mean, that's a possibility, but... You don't need a constitutional amendment. No, you don't.

No. I mean, the Congress, the Judiciary Act of 1869 established the Supreme Court would consist of a chief justice and eight associate justices. So it's not, a constitutional amendment is not necessary. The Supreme Court is established by the Constitution, but the Constitution does not have a number in there. That has always been established by legislation, Jay.

We have a President, we have a vice President, we have various cabinet members, we have officers of various agencies appointed under the Constitution, but the number of justices, although I think number nine is correct, is not specified in the Constitution. So they may not, a lot of this getting it through might require a constitutional amendment, changing the length of term. But, and I question the constitutionality of the executive telling the President or the legislature, putting forward how the court should decide cases or take cases, but changing the number does not take a constitutional amendment. We got to be clear on that. Absolutely.

That would be one of the easiest changes to make. And I think your question, Jay, was very, very on point because neither House Democrats nor Senate Democrats are known for anything approaching principle. So I think at the end of the day, it will all come down to one thing, political expediency.

And I think if you look at Chuck Schumer and Nancy Pelosi, political expediency will push them in favor of packing the United States Supreme Court. All right, 800-684-3110 for your calls, 1-800-684-3110. Let's go to Jim, who's calling on line four. Hi, Jim.

Yeah. Hi, Jay. Appreciate your call, answering my call. I've been listening for several minutes now, waiting my turn to get on.

And a lot of my questions have been answered, at least explained by your great speakers there. But if the commission, you know, the commission is obviously skewed, it's a setup, it's predestined to give predicted results, and all these other issues that experts are speaking about how wrong this would be to change the numbers of justices, and so on. And then the speaker just mentioned, or you guys both discussed that Rubio's type of proposal, by way of an amendment, would be almost impossible to get through.

And the, you know, numbering the number of justices doesn't even need a constitutional amendment. I just find myself needing more encouraging news that they're not going to be able to just push this through. Well, you know, Jim, I don't think they're going to be able to just push it through. I mean, it's not a free-for-all.

We're just trying to be realistic. Some of the changes that they might propose, like changing the life tenure of an appointment, would require a constitutional amendment. Adding justices, though, as I said, does not. That is within their authority. What a scary thought that they would even consider it. Now, this is not only political revenge. This is a politically opportunistic drive, Jay, and that kind of action and the motive behind it, because it is so blatantly political.

It's shameful. And to me, it says that some of these people, they care more about their political agenda than they do our country and the rich history of our country and how our constitutional republic is set up with three separate branches of government. Than, from your view, would they have a chance of getting that through, a change of numbers, or do you think the Senate would block it?

Yeah, I think we're going to win this, but they certainly have a chance. Here's what I would tell Jim to watch for. You've been going through this whole description of what they're asking for in this executive order. And I think this is strategic, Jay.

I think they've thrown everything at the wall in this. So then what can happen is the commission will come back and say, look, we're not going to recommend all of those things. We're just going to recommend this one nuanced minor thing. And that nuanced minor thing, Jay, as they will describe it, is going to be court packing.

I think they'll come back with maybe just that recommendation or one or two more, and they'll try to pitch it to so-called centrist senators as a moderate change. That's what Jim's got to watch for. But I think we can win it in the end, Jay. All right, let's take the last call here. Richard's calling from California. Richard, go ahead. You're on the air. Thank you. God blessings to all of you.

I just want to say, basically, I'm just a common person here. And from what I've seen, all I see is control. All they want is control. They can't even handle the border, let alone anything else.

And it's just very frustrating. They're trying to turn this country inside out. Well, this is what this, look, I mean, they put a commission together with, I think, a very clear, hairy agenda of where they want to go.

I think it's worth reiterating what they're talking about. They want to look at the Supreme Court, not just for the life tenure of the justices or the number of justices that should be there. Life tenure, of course, the Supreme Court is mandated by the Constitution.

But this is what they're saying. The length of service and turnover of justices, the membership and size of the court, the court's case selection rules and practices. Now, the court's case selection rules and practices are set by the court. It's their branch of government. Absolutely. But I think the Biden administration wants to deprive the United States Supreme Court of the right to hear certain cases. So for instance, if you consider the proposed bill, H.R.

1, which basically expands federal power over state and local elections, it's very likely that the Biden administration, along with progressive Democrats, would want to prevent the United States Supreme Court, at least as currently constituted, from actually hearing the constitutionality of such a law. All right, so, fan, with 15 seconds, but we need to give some hope here. We're on top of this. Your team is up there, are on top of this. Already been talking to the United States Senate in anticipation of this, Jay. More than 100,000 of our members have already signed with us. By doing that, Jay, it's going to build our voice in D.C. and make the impact even greater. Your support of the ACLJ allows this to happen so we can stand guard and now protect the judiciary.

Your support makes a big difference. ACLJ.org. Any amount you donate, we're getting a matching gift for.

That's ACLJ.ORT. Make sure you're getting our emails and alerts as well. It's a great way to stay in contact with us and follow us on Twitter and other social media platforms. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20. A $50 gift becomes $100. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org.