Should Congress Add More Justices To The Court: It’s Foundations of Freedom Thursday, a special day of the week where we get to answer questions from you, the listeners! Always answering from those constitutional and foundational principles! Tune in today as we answer your questions such as, should Congress add more judges to the court, how is the Chief Justice elected , what is the true meaning of the Confederate flag, and so much more, right here on WallBuilders Live!

Air Date: 06/29/2017


Guests: David Barton and Rick Green.


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast.  However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers.  Additionally, names may be misspelled because of the difficulty in understanding the speaker at times. We apologize in advance.



President Thomas Jefferson said, “€œ I know no safe depository of the ultimate powers of the society but the people themselves. And if we think them not enlightened enough to exercise their control with a wholesome discretion the remedy is not to take it from them but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”€


Welcome to the intersection of faith and the culture, this is WallBuilders Live! Where we”€™re talking about these hottest topics on policy, faith, and the culture, all from a Biblical, historical, and constitutional perspective.

Doing that here with David Barton, America’s premiere historian and the founder of WallBuilders. And my name’s Rick Green, I’m a former Texas state rep, national speaker, and author.

You can find out more about us and the organization at our website, that’s the radio website where you can find out which stations we’re on across the country.

And then also you can get the archives from the last few weeks just like today, being Thursday, we call it Foundations of Freedom Thursday and it’s a chance to get questions from the audience and dive into those foundational principles, and the Constitution, and the Declaration, and learn more about the Founding Fathers. And then apply those principles to our world today.

So those Thursday programs are available there in the archives. If you like what you hear today, and you want to go back to some of those previous programs, check it out there Also, some of our Good News Friday programs are available there as well.

Then our other website is, a wealth of information there. You can tap into David’s incredible library of Founding Father documents. A tone of them available on the website and some other great resources there as well.

Alright, David, we have more questions than we can possibly get to, and some great ones. I tell you what, I get educated just reading the questions let alone giving you a chance to answer them. There are so many great questions that have been coming in.

So, audience, y’all keep them coming in. You can send them into [email protected]. Can’t promise we’ll get to them but we really love getting your input and it helps us kind of know what topics you really want to hear about and learn about. And we love sharing your questions.

Should We Add More Justices To The Court

David, are you ready to dive in?


Let’s do it.


Alright, first one is coming from Randy and he tells us, “€œMy limited knowledge of history has been greatly stretched since I’ve been listening to WallBuilders Live and consumed many of the WallBuilders materials. I thank God that I learned of your organization and pray for your continued growth and success.”€

And then he goes on, I’m not going to read the whole letter David, but he’s got some great stuff in here, some great questions. He talks about Article 3, putting Congress in control of the judicial branch and questioning why it doesn’t use that control anymore. That the number of justices have changed over the years but the lowest number being five and the highest being ten. And curious about why the Congress doesn’t use that power more often? So if it was able to make changes before why doesn’t it do it now? And would it help?

And before I get to the rest of his letter, that may be the first question I’d ask you, David. Do you think it would help to either add more justices to the court or reduce it and drop it to a lower number?


If you added more, it would all depend on who appoints them. Because while the Constitution is clear, and the Constitution is very succinct in what Congress can do with the courts, and should do with the courts, it all makes a difference whether, for example, Trump is your president or Hillary is for president.  

Because on one you’re going to get pro-life judges and one you are going to get pro-abortion judges. With one, you”€™ll get judges who respect the Constitution and with the other, you’re going to get judges who want to rewrite the Constitution.

So, if we expanded it as they started to do under FDR, he was going to do just court packing scheme, I think he wanted to take it up to 13 because if he got five or six more than he can have the majority with the few that were there.

So you know it’s all about who makes the appointments. It should be about what the Constitution says and upholding the Constitution but we’re at a point in America where we have two Constitution. There is a living Constitution and then there’s the actual written constitution.

The living Constitution I think was very well defined by Chief Justice Charles Evans Hughes who said, “€œWe are under a Constitution.”€ And if he stopped right there would all say, “€œGreat.”€ He said, “€œWe are under a Constitution but the Constitution is what the judges say that it is.”€ That’s a living Constitution.

If two plus two equals five that the judges and they say that, is that constitutional? Well, under their view it is. So they rewrite the constitution. So the first answer would be that it all depends on who’s appointing the judges.

If you were to use that tool then you would say, “€œOk, I don’t like the two justices that Obama appointed so I’m now the president. I’m going to eliminate two positions, I’m going to throw those two people off the court.”€ You can’t do that. Every president comes in ups and downs the numbers based on who he wants to get rid of and who he wants to add. That’s why Congress has to be involved in this. And the Constitution makes it clear that Congress, not the president, is the one who can remove justices from the courts.


So, if the president decides he wants fewer on the court and decides that he’s going to maybe just not fill vacancies and then tries to get Congress to pass a change to the number, that would work, right?


That’s right.


Like when Scalia passed away Congress could have said, “€œWell, we’re going to pass a new Judiciary Act, there’s only eight.”€ And if the president signs that or lets it go into effect then boom, now we’re down to eight instead of nine.

The Exceptions Clause


That’s right. And he could say, “€œI’m not going to fill that position. As a matter of fact, the next five justices that leave or die I’m not going to fill the positions.”€ There’s nothing that Congress can do with that unless they want to impeach him, and get him out of there, and get a new president in. Then with the vice president do the same thing.

So, yeah, you’re right. He could not fill that position because he is not constitutionally required to fill that position or Congress could come in and drop the numbers down from time to time and it is strictly them. And that’s one of the proofs that the judiciary is not an independent branch, contrary to what we hear. The judiciary can not organize itself.  

The judiciary can not say, “€œHere’s how many justices we’re going to have. Here’s how many courts we’re going to have. Here’s the issues we will cover.”€ It is Congress, to this day, that tells the courts what issue they can cover. Now, there’s what’s called, “€œOriginal jurisdiction”€ and the Constitution gives a half a dozen things. If there’s a dispute between states, if there’s a dispute between a foreign nation and a state, if there’s a dispute between American a foreign nation, those all go to the Supreme Court.

Outside of that those original jurisdiction issues Congress can pass a law today that says that no federal court is allowed to touch the issue of abortion. End of story.  Well, they can do that. They can- it’s called the exceptions clause.


It’s right there in Article 3.


Article 3. Over 200 times Congress has taken certain things off the platter of the federal judiciary. So if the judiciary were an independent branch it could organize itself, it could take care of itself, and could defend itself, but it can’t. Congress is put in charge of that. So it really is Congress.

He lamented that Congress is not doing what they should. And I lament that too. But I would argue that most congressmen if they were to take the 1828 elementary test, Stansberry Catechism of the Constitution and try to answer the questions there.


Maybe not do so well.


I would bet that 85 percent of congressmen would not pass the elementary test that was given in 1828.


Ok, I’ve got a process question for you when we return because he asked if the Congress did do that, say they got rid of the 9th Circuit, or they did lower the Supreme Court to five justices, how do you do that if none of them have resigned or passed away? How do you pick who would go down and what would happen there? Stay with us folks, we’ll be right back with David Barton on these Foundations of Freedom Thursday.


Calvin Coolidge said, “€œThe more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”€

Moment From American History.

This is Tim Barton from WallBuilders with another moment from American history. American patriot Paul Revere road to alert Americans of the impending arrival of the British. But he also sought patriot leader Samuel Adams and John Hancock to warn them that the British were seeking their execution.

Adams and Hancock were staying with the Reverend Jonas Clark in Lexington. When they asked Pastor Clark if his church was ready for the approaching British he replied, “€œI’ve trained them for this very hour. They will fight and, if need be, die under the shadow of the house of God.”€

Later that morning 70 men from his church, a several hundred British in the first battle of the war for independence. As Pastor Clark affirmed, “€œThe militia that morning were the same who filled the pews of the church meeting house on the Sunday morning before.”€

The American church was regularly at the forefront of the fight for liberty. For more information on this pastor and other colonial Patriots go to


Abraham Lincoln said, “€œWe the people are the rightful masters of both Congress and the courts. Not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”€

How To Choose Which Justices To Stay


Welcome back to WallBuilders Live Foundations of Freedom Thursday today, and David, as we went to break another part of Randy’s question, is about what happens when they do reduce the court, and yet, there’s let”€™s say currently nine, let”€™s say Congress passed a reduction of the Supreme Court and the president signed it and he knocked it down to six, back to the original. How do you decide which three are no longer on?


Well, there’s two ways under the Constitution that you can reduce the number of Justices. Now, you can pass a law that says there is going to be six, but that doesn’t mean you get to draw lots like it at Goliad and choose who gets the black bean, who’s going to get shot in other words. You can do it by the justices vacating a position, that can be through death or resignation, or you can do it by impeachment.

And those are the two means you have to take sitting judges and justices and reduce them. Now, you can do it other ways. For example, in the Federal Circuit Court of Appeals or in a district court, you have some other tools that you don’t have at the U.S. Supreme Court.

For example, in reconstruction back in Georgia, I think it was about 1868, thereabouts, there was a federal judge I think it was the Northern District of Georgia who just absolutely refused to uphold reconstruction laws, the Fourteenth Amendment, etc, and he did his own thing.

So rather than impeach the guy, what Congress did was they simply abolished his court. Those are called, “€œinferior courts”€ in the Constitution. And Congress is the one who creates those courts. The only court created by the Constitution is the U.S. Supreme Court and even the Constitution does not tell you how many justices or what is there. It just says, “€œYou will have a Supreme Court.”€ End of story.

So if that’s one, great your chief justice is your entire Supreme Court. If that’s 114, that’s up to Congress. So, what they did with this guy, I think 1868, they just simply abolished his court.

So he no longer has a court, so he is now off the bench. And they came in the next day and reconstituted that district court. But it’s a new court because it’s a day later, it’s now being reestablished. And they simply appointed a new judge to go into that position. That’s how they get rid of it. That’s how you’re able to get rid of Judge like that.

But you can’t do that with the Supreme Court. The Supreme Court, the position has to be vacated and that’s death or resignation or they have to be removed by impeachment, other than that you just have to wait for them by attrition to leave.

How Is The Chief Justice Elected


Ok, last part that we’ll try to get out of Randy”€™s letter, because he had a lot of great questions here, we’re not going to be able to get to all of them, but he asked about the chief justice and how that’s selected. The president seems to appoint that specific position, is that the way it’s always been done? And could the president if there was a vacancy nominate that person and say, “€œI’m going to make them chief justice now.”€ And whoever, I guess, Roberts at this point, “€œIs going to become an associate justice.”€


Well, there’s not been a precedent on that, Rick. So we really don’t know if that would happen. You would assume that once you have received the title there has to be a way to take it away from you. And generally, since it’s not constitutionally specified, this never happened in history, you would think that it would be the justice giving it up.

Now, what could happen is the president-


And it wouldn’t seem right, that just the president could change that when it was actually the president and the consent of the Senate that set that up basically.


What could happen is the president could call for his resignation as chief justice, he still remains justice on the court, and if he voluntarily submitted his resignation then there is a vacancy there. And the president can nominate a new chief justice.

But I don’t think we’re going to see anything happen where the president ever tries to take control and say, “€œI’m tired of using my chief justice. You’re gone, I want somebody else.”€

Because as you point out, it has to be with the consent of the Senate. And he would have to give up that position somehow. There’s not a mechanism to take that position away from him unless they plan to impeach him and just get him totally off the court.


Alright, he has some other great questions about how federal appointments are not lifetime and the Constitution is for is for good behavior and we do cover all that in our constitutional law of course and some of the writings and articles are available right there Wanted to get some from our other listeners when we come back from the break so stay with us, we’ve got more of your questions on this Foundations of Freedom Thursday.


George Washington said, “€œThe constitution approaches near to perfection than any other government instituted among men.”€

Bring A Speaker To Your Area


Hey, this is Tim Barton with WallBuilders.  And as you’ve had the opportunity to listen to WallBuilders Live, you’ve probably heard a wealth of information about our nation, about our spiritual heritage, about the religious liberties, and about all the things that make America exceptional. And you might be thinking, “€œAs incredible as this information is, I wish there was a way that I could get one of the WallBuilders guys to come to my area and share with my group.”€

Whether it be a church, whether it be a Christian school, or public school, or some political event, or activity, if you’re interested in having a WallBuilders speaker come to your area, you can get on our website at and there’s a tab for scheduling. If you”€™ll click on that tab, you’ll notice there’s a list of information from speakers bio’s, to events that are already going on. And there’s a section where you can request an event, to bring this information about who we are, where we came from, our religious liberties, and freedoms. Go to the WallBuilders website and Bring a speaker to your area.


Samuel Adams said, “€œThe liberties of our Country and the freedom of our civil Constitution are worth defending against hazards. And it is our duty to defend them against all attacks.”€

What Does The Confederate Flag Mean


Thanks for staying with us on this Foundations of Freedom Thursday. Our next question comes from Rob in Kingman Arizona. The question is this, it”€™s a short question. David, you ready?


Let’s go for it.


He says, “€œWhat is the true meaning of the Confederate Flag?”€


Oh my.


That is a much hotter topic a few years ago then maybe it is now. But hotly debated in a lot of communities. What is the true meaning of the Confederate Flag?


Man that is a short question. That is a can of worms, that’s for sure. You know, there are several ways to answer that.


First, it would be which one? Which does the person mean by the Confederate Flag? Right because there were multiple?


I mean, is it what it is now? Or what it was then? Or what it was between? So let’s just do a little history because it still is a very volatile symbol. I mean, you want a visceral reaction from folks who just display the Confederate Flag or put a Confederate bumper sticker on.

Remember the story we had, what was it last year or so, that there was a worker on campus and he had a Confederate bumper sticker. And oh man, the university went crazy. They found out and they issued a big apology to the entire student body for all the damage that had been caused psychologically by possibly having seen that bumper. From the left, there’s a visceral reaction.

Probably the best way to say this is, bottom line, there are about three different meanings for the Confederate Flag it means something different for a white than it does for a black. And it means something different for a historian than it does for a politician.

So let’s just kind of go into what that is. If you take the Confederate Flag the one that is- and you remember, what was it, two or three years ago South Carolina was having this big thing all over the Confederate Flag being flown over its Capital? So there’s all this stuff that goes with it and it’s still a big point of fights in so many communities.

But the deal is, what you see displayed by, you know, they always associate it with racist rednecks. What you see on pickup trucks, bumper stickers, or flying in yards, that is not a flag that was flown by the Confederacy. That’s not what it is.

So when you go through the flags flown by the Confederacy it actually is a sequence of flags. And if you look for example- and there’s some places you can go online to look at the flags.

But the first flag that was flown by the Confederacy, and the Confederacy became a nation 1861, it was three stripes going right to left and a circle of stars up in the field. Kind of like the original 13 stars and the original flag. But there were three stripes on it. So there is none of the crossbars, the diagonal bars, the “€œstars and bars”€ as they call it today. You look at that flag and it looks nothing at all like the flag that is the center of controversy today.

The Stars And Bars

Then in 1863 the Confederacy changed its flag to a totally white flag and up in the corner, where the stars would be on the United States flag, up in the corner was what was called, “€œThe Stars and Bars.”€ And it was just a small part of the flag.

But the problem was when they flew that it was so white that it looked like a surrender flag. So they get in all sorts of trouble because it looks like their surrendering when they”€™re flying their flag.

So then they came in with their third flag and that was 1865 and it had a big red end on it. And it still is partly white and still has some of the stars and bars up in the corner and then a big red banner from top to bottom. So to make sure that you understood this is not a surrender flag.

So it is really kind of the inset of that flag that has blown up into the big Confederate Flag today. That Confederate flag today has kind of a sorted history, in that it really didn’t become its own flag until the segregation issues of the 1940″€™s and 50″€™s.

And particularly around Strom Thurmond, when he did the Dixiecrats. And the Dixiecrat Party ran for segregation, that was part of its platform. That’s when the flag started appearing. And then when you had civil rights marches and Dr. King came out and the other guys on the other side brought out the stars and bars.

But what we see today was never a Confederate Flag. It just wasn’t. It was a reaction to the civil rights movement which is why for blacks, when they see that flag, that’s like a Klan uniform because it never was a historical flag. It was something that was brought out at that point in time.

So that’s kind of the background of it. But it’s interesting that even Robert E. Lee, when he died, would not allow any Confederate Flag to be flown at his funeral. He didn’t want any association with it, he wanted to leave the divisiveness behind, he wanted to bring unity, he wanted to get past that, and that’s what I would argue today.

Should We Support The Confederate Flag

And by the way, I have to say that for a lot of white folks when they see the Confederate Flag it’s all about states rights. Ronald Reagan talked about states rights and when he said that whites heard something different than blacks. Because when blacks heard “€œstate rights”€ that’s what the Jim Crow Democrats used to say, “€œWell, it’s our state right to say that blacks can’t vote, and they can’t keep and bear arms, and they can’t be married, and they can’t go to education, they have to have segregation.”€

Blacks heard “€œstate rights”€ every time they lost rights. It was always in the name of states rights. When we hear state rights we think, “€œYeah, the federal government shouldn’t be telling schools what to do. We have local school boards. We have state school boards. We don’t need a federal school board.”€ Yeah, the federal government shouldn’t be telling us whether we can pray in school, states have rights. And so we can pretty much talk past each other.


Yeah, words mean different things to different people depending on your experience and that’s respective. And same thing with that flag, I mean, I had a school district in my district, they were the rebels and that flag was kind of their mascot for a while. And when they would play a school that was predominantly black for that school to have this other team really kind of rubbing that flag in their face. Like you said, from their perspective, that was not a sign of patriotism. And for the white kids it may have meant patriotism and stand for your particular state. But to that black kid man it meant something totally totally different and it was in fact very divisive.


I will say that we do a terrible job of teaching black history from that standpoint, the Jim Crow side of history. And a lot of that goes back to Woodrow Wilson. After the break let’s get in that a little bit on how history changed and why we don’t know that part of our history today.


Yeah, here I said it is going to be a really simple question, but we’re going to stick with it when we come back. Stay with us folks, you’re listening to WallBuilders Live.

President Calvin Coolidge said, “€œThe more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”€

Constitution Alive

Have you ever wanted to learn more about the United States Constitution but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know. But it gets frustrating because you don’t know where to look for truth about the Constitution either.

Well, we’ve got a special program for you available now called Constitution Alive with David Barton and Rick Green. It’s actually a teaching done on the Constitution at Independence Hall in the very room where the Constitution was framed. We take you both to Philadelphia, the Cradle of Liberty and Independence Hall and to the WallBuilders”€™ library where David Barton brings the history to life to teach the original intent of our Founding Fathers.

We call it the QuickStart guide to the Constitution because in just a few hours through these videos you will learn the Citizen’s Guide to America’s Constitution.  You’ll learn what you need to do to help save our Constitutional Republic. It’s fun! It’s entertaining! And it’s going to inspire you to do your part to preserve freedom for future generations. It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now at


Thomas Jefferson said, “€œThe Constitution of most of our states and of the United States asserts that all power is inherent in the people that they may exercise it by themselves that it is their right and duty to be at all times armed. That they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press.”€

The Woodrow Wilson Version Of Black History


Welcome back on this foundations of freedom Thursday, we don’t have enough time to get any other questions. So David, let’s stick with this Confederate Flag question. It was a simple question, “€œWhat’s the true meaning of the Confederate Flag?”€ You give some of that history in the last segment. Give us a little more in these last couple of minutes together.


We really don’t know much about Black History today and the way it really happened. That goes back to Woodrow Wilson. There probably is not a greater racist as a president of the United States then Woodrow Wilson.

He went into federal office and he took the blacks who were working for federal government and got rid of all them except one, he kept the token black, literally. “€œBut he’s a great academic, he’s a great educator, he’s the president president of princeton, and my gosh he did a five volume set on the history of the American people”€- a set of history, by the way, that became the basis of the Klan recruiting film, “€œBirth of a nation”€ which was shown at the White House, a Klan recruiting film under Woodrow Wilson.

So you have this book that just rewrites black history by taking it all out because, “€œBlacks are all these bad people, and only whites are good.”€ And academic said , “€œOh my gosh, this is written by the President of University. Let’s use it today.”€ And so that’s really still what shapes a whole lot of our history books is that Woodrow Wilson academia that is just crazy.

The Truth

So you don’t know that and unless you’re black that lived through so much of what happened in the south, unless you understand the 11 Jim Crow laws that were targeted at you, and most whites don’t know that because they don’t have the history unless they lived through it, because they don’t learn about it in school. It’s really hard to understand. So, I do understand, I speak in a lot of black churches, black communities, black groups, work with black legislators. I understand. And I’ve got great friends, they’ve been through tough times, because of the race issue stuff that whites will never understand.

So what I do is I don’t talk about states rights, I talk about the 10th Amendment. And the 10th Amendment says that any right not enumerated by the Constitution of the federal government belongs to the States. And so I say, “€œThe Tenth Amendment says that the federal government is do these 15 things and not these. And so therefore, we and the states can do the things the federal government cannot do.”€ And that keeps it from being states rights, although it has the same meaning.

And by the way, under the Constitution 13th, 14th, and 15th Amendment, protecting civil rights is a federal responsibility. I mean, that’s part of those amendments. So that makes it safe for black community to talk about things that the federal government not to do and that the states are to do and that does not make it a states rights issue.

But that’s really what the Confederate Flag means, what it represents, it is different things to different people. But I go to first Corinthians 8, that if eating meat offered idols offends my brother I’ll not eat meat ever again offered to idols. And I’m the same way of the Confederate Flag, if that’s going to offend a huge group of Christian brethren, black brethren. I’m not going to do that. And that’s why I just stay away from that totally because it is so divisive and so offensive for so many people.


Yeah, a great perspective and we just don’t, in my community, in my family I didn’t grow up with that perspective because I didn’t have that explained to me and it wasn’t until a black brother actually told me what his perspective was when he saw that and what those kids were going through. That same thing as you just said, it changed my attitude and made me realize, “€œMan, I don’t want to do something that’s going to cause pain to this brother.”€ Anyway, so good perspective. Great question.

More questions we’ll get to next week on Foundations of Freedom Thursday. And you can get to some more of those programs on our archives there at Thanks for listening to WallBuilders Live!


Thomas Jefferson said, “€œ In questions of power then let no more be heard of confidence in the man that bind him down from mischief by the chains of the Constitution.”€