The Supreme Court – The Good – The Bad – And The Ugly – Join us today to hear Kelly Shackelford speak on the recent Supreme Court decisions. Religious freedom is at stake…tune in to hear more!

Air Date: 07/13/2020

Guest: Kelly Shackelford

On-air Personalities: David Barton, Rick Green, and Tim Barton

Today’s Links: http://firstliberty.org

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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. 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 or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

 

Rick:

This is the intersection between faith and politics. It is WallBuilders Live. We’re talking about all the hot topics of the day, from a biblical, historical and constitutional perspective. We appreciate you joining us. My name is Rick Green, I’m a former Texas legislator and America’s constitution coach. And I’m here with David Barton. He’s America’s premier historian and our founder of WallBuilders. Tim Barton is with us. He’s a national speaker and pastor and president of WallBuilders.

Most importantly, we’ve got you with us, which means we get the chance to share with you the perspective on these hot issues of the day that we get from looking at the Bible. What does the Bible tell us about life and marriage and taxes and government and how all of these things should work? What does the constitution tell us? How do we make sure that we’re following our constitutional guidelines that we’re protecting constitutional rights and we’re living up to our constitutional responsibilities? And then what does history teaches about these things? How can we look back into history, say there’s nothing new under the sun? We can learn from previous situations where people have faced the same kind of challenges that we’re facing today. So, a biblical, historical and constitutional perspective, that’s what we do here at WallBuilders.

WallBuilders actually comes from the scripture in Nehemiah that says, arise and rebuild the walls that we may no longer be a reproach. In our nation today, the strength of our nation depends very much on our foundation, our principles. In the Old Testament back then, it depended very much on those outer walls. If you didn’t have those, your nation was run over. And so, Nehemiah knew he had to rebuild those walls to make the nation strong.

Well, here in America, we need to rebuild the foundations. We need to make sure we get back to the foundational timeless principles of liberty that made America the greatest nation in the history of the world, the most free, the most powerful, the most benevolent nation. And we can do that. That’s the good news. Hey, the tools are at our fingertips. We have everything we need to make sure that America once again becomes that that beacon of hope; that once again, our people when they wave that flag, they understand why that flag is worthy of being waived. The American story is amazing and we’re so glad that you’re with us to discuss these things today.

We also want to encourage you to visit our website, it’s wallbuilderslive.com, wallbuilderslive.com. And at that website, you can actually get archives of the program. So, if you’ve just tuning in with us for the first time today and you’ve missed some programs, you’re curious about what we do, just go to the website. You can listen to the programs for the last few weeks and months.

So, every Friday we do what we call Good News Friday, it’s a chance for David and Tim to share stories from across the nation that are good news stories. Despite all the bad out there, there’s a lot of good as well and we love sharing that on Fridays.

Thursdays, we do what’s called Foundations of Freedom Thursdays and that’s where you get to send in questions. And we dive into questions about the constitution, about the founding of the country, about all the things we’ve been talking about, the biblical, historical, constitutional application to the things of the day.

And then Monday through Wednesday, we have interviews with folks that are out there on the frontlines trying to save our country. Many times, it’s attorneys arguing before the Supreme Court, it might be a US Senator, lots of great folks that come on the program. Later today, we’ve got Kelly Shackleford. with us. He’s going to be talking about some of the Supreme Court decisions. David, Tim, it’s always good to have Kelly on the program. I guess, we’re still getting some Supreme Court decisions trickling out, but there’s already been a lot of them, some really good and then some really bad, which I guess it’s always that way. Some were, a big disappointment, though. What do you guys think about all these decisions we’re getting?

David:

Well, one of the things we know about Supreme Court traditionally is, of course, a session as July begins. So, they’re out of session, July, August, September. They go back in the first week of October. So, they go from October through June, nine months session, then they take these three months off. So, what they always do is the last week of the session, they hold and release what they know will be the most controversial decisions. The ones that are going to be the most eye popping either good or bad, it’s going to really tick off the left or really tick off the right, whatever it is, you’re going to get them that out last week and so they dropped those decisions last week.

And so, while we’ve had, overall a lot of really super good decisions this year across the last several weeks and months. The last week is where you get all the headlines. And so that has certainly been the case this time. There are some massive disappointments that came out involving some justices we never suspected, you know, kind of what we consider the conservative constitutional guys, they ended up on sides of decisions we couldn’t believe. At the same time, we had some really super good decisions come out in the same week that really changed the landscape as well.

Tim:

Well, and maybe one point of clarification. We did have a friend named Kelly Shackleford, who warned us about a few of these positions from some of the Judges early on, saying that, even though they’re good on 99% of the issues, there’s one area where they’re a little iffy we’re not real sure about it. You know, we tried to raise a couple flags early that this could be an issue. And so, there were a few People that saw the potential for some of these decisions on specific issues coming. But by and large, there’s been so many positive things that have come and it makes something like more recent decisions even more disappointing, considering how good things had been and how many good decisions that come for so long. Then to get kind of sucker punched in the gut, you just go oh, man, that was a really bad one. From Justices that, again, you have Supreme Court Justices from Trump’s two nominees, the two picks have by and large been very, very good.

David:

And Tim, as you said, we got forewarning on some of this two, three years ago from Kelly Shackleford. So, we thought Kelly would be a really good guy to look over the last week of the session when all these decisions come out and kind of help us see the landscape on what they mean.

Rick:

Firstliberty.org is the website for Kelly’s organization. Kelly will be with us when we come back from the break. You’re listening to WallBuilders Live.

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Rick:

Welcome back to WallBuilders Live, thanks for staying with us. Kelly Shackleford back with us. Kelly Shackleford, one of the 25 greatest Texas lawyers of the past quarter century. It’s what Texas lawyer said, Kelly actually, I think that’s under blown. I’d say one of the most important top five attorneys in the nation certainly if you care about religious liberty. So, we love you, brother. We appreciate all that you do. Thanks for coming on to spend some time with us.

Kelly:

Oh, happy to do it, Rick.

Rick:

Hey, First Liberty is obviously involved in a lot of these cases that make their way to Supreme Court and certainly working their way through the courts even now, but also monitors very carefully the cases out there that are decided by the Supreme Court and lower level courts as well. A lot of decisions last week or two; mixed bag, couple of good ones, a couple of really bad ones. So really just wanted to get your thoughts on some of this and definitely the one that now could potentially make it hard for even churches I guess to be able to let people go that are just definitely not aligned with the philosophy and belief system of that church or entity. And I’m wondering if you think it goes that far, are there some protections to prevent that?

Kelly:

Well, the boss stock decision, which you’re referencing was the one that kind of caught a lot of people off guard when Justice Gorsuch, who’s a very conservative justice on all the cases, except for this one. This is one that we kind of foresaw could be a problem. He had joined an opinion before he was a Supreme Court Justice that kind of went this direction. He’s really solid on religious freedom, he’s solid on lot of the things. But on this transgender kind of sexual orientation issue, he’s kind of left his normal philosophy.

And so, a lot of people were disappointed when he essentially rewrote a statute from 1964 that says in the workplace, you’re not allowed to discriminate on the basis of race, sex, religion. And he just completely re-engineered the word sex, which I think everybody knew what that meant in 1964 when it was passed. So, now, it means sexual orientation, transgenderism.

And so, the best way I can describe for your listeners as to what he’s done is he essentially weaponized this federal law where now every State I mean, most States did not pass a law like this. He’s now weaponized this federal law to be used in every State across the country. So, there’s this new weapon.

And in some cases, there won’t be much you can do to defend yourself. So, for instance, let’s say if your women’s sports and you want to have girls’ sports and guys sports, you can’t argue religious freedom on that, right? And so, I don’t know what’s going to happen there, there’s very little to do against it. But in the area of religious freedom, he’s created this new weapon. There’s going to be a flood of lawsuits now against religious organizations, religious businesses, churches, etc. But we don’t know how those are going to turn out yet, because in the decision he also said hey, I want to make clear that while we’re doing this for this decision, there were no religious claims in this decision and we’ve got a look at the Constitution and we take religious freedom very seriously.

So, he sort of said, hey, don’t think that religious freedoms are going to lose here. And I do have high hopes, at least on that side that while he disappointed a lot of people in this decision, I think he had always been really solid on religious freedom. So, we’re hopeful that those cases will be one, but man, there’s a flood of lawsuits that are now going to occur and that every religious entity or individual is going to have to deal with this new weapon that’s been created.

Rick:

And in the past, I mean, most of the decisions even when they didn’t go the way that we would think constitutionally and just historical precedents, there was usually a carve out for some sort of religious exception, for religious entities, at least at the state level. Am I projecting that onto the federal decision as well or is that kind of been there as well?

Kelly:

Well, I mean, you know, yeah. I mean, if you pass a law, there’s usually some sort of in the legislation when you write it, you have to deal with all the fact. Hey, wait, I mean, surely, you don’t mean to tell a church that they can’t hire somebody who follows their faith beliefs on these issues. And then they would do stuff like, Title VII itself has a specific carve out that says, if you’re a religious organization, you are allowed to discriminate on the basis of your religion with regard to your ministers and all the other people in the key positions.

So, they wrote that in, but that’s the problem. When a judge sort of rewrites the statute, there’s no legislative process. So, you just kind of opened the floodgates and now we’re going to figure out where all these things go and what the limits are and whether the Constitution protected people.

And the best sort of, I don’t know, visual I can give people for this is a new your weapon, sort of a rifle has just been created. There is a shield called Religious Freedom. But the question we don’t know yet whether the shield blocks the weapon and we’re going to find out in a lot of different scenarios. Because in addition to this statute, Rick, there are hundreds of other statutes, maybe thousands in every State federally that use the word sex. Well, they’re all going to now start saying hey, sex doesn’t mean male or female, it means the new definition that Justice Gorsuch laid out. And so, it’s going to open up not just this and employment, but it’s going to open up every statute that says sex should now be used in this type of an argument.

Rick:

Oh, man, it’s going to be chaos. Well, you know and it makes what you guys do that much more important, because you got an eye on those things and I’m sure you’re going to end up with several those lawsuits as well. Yours website firstliberty.org, best place to follow the suits that you’re involved in, also to keep up with the judicial appointment, had a great job of keeping us informed on the vacancies and how all of that’s going and just a fantastic organization to give.

To all our listeners out there, I just challenge you, encourage you we need First Liberty more than ever right now. So please consider putting them on your offering every year that you give and donations that you make. Kelly, before I let you go a lot, you know, last week or so of a discussion and that people are talking about Stare decisis and the impact of that on the court. I’ve always been a Thomas fan because he kind of, not that he doesn’t care about it, but he says it shouldn’t dictate what we do. And it looks like Justice Roberts is going to make even his own decision from four years ago. Can you just explain what that means and does that hold us back on some of these religious liberty cases as well?

Kelly:

Well, I think everybody’s, you know, there’s been a lot of disappointment in the conservative base over some of these decisions. And I think the Gorsuch decision, as we just talked about was shocking to a lot of people. Again, it wasn’t as shocking to us. But I do want to be balanced about it that he has been really, really good on everything else. You know, even the decisions over the past few weeks, the religious liberty decisions that are coming down, I mean, he is sort of not only going with the majority, but riding in currents to go even stronger in his protection. So, I want to make sure we look at that and don’t just go think all is lost. Right?

Rick:

Right. No. And he’s great on, I mean, not only religious, Second Amendment. I mean, there’s so many areas that he has been totally solid, for sure.

Kelly:

He is. So, I think usually not going to be disappointing. This one area, obviously, this is a serious, serious deal. But Roberts, on the other hand, is really, I think, flabbergasted almost everybody. Because I mean, he presented himself in the confirmation hearings and before as this Judge who’s about calling on balls and strikes being the umpire. And everybody is just obvious now he’s playing politics. And the biggest theory is that he feels like the court is in jeopardy. He’s the chief.

There’s all these arguments by especially crazy people on the liberal side that they need to pack the court, they need to do all these really radical things that would take away the authority of the court that existed for over 100 years. And they think he’s trying to protect it by sort of jumping on liberal side, at least 50% of the time so that looks more balanced. Of course, if that’s what he’s doing and that’s probably the most common theory of what he’s doing, I mean, he’s doing exactly what he doesn’t want to do with, he politicizing the court and instead of just ruling on what the law says.

And so, that’s been really disappointing to a lot of people. And I think all it’s really done is go, gosh, you know, President Bush messed up on one of these appointments and at least Kavanaugh has been right on all the big cases. Gorsuch has made a huge mistake. But all it does is show us that we need at least one more if not two more solid people on the court to make sure that we don’t have people flaking off and doing weird things instead of following the law.

Rick:

Yeah. Wouldn’t that be something if we had say a six or seven vote supposedly because conservative majority, so when you do have one or two flake off, we still have the majority?

Kelly:

That’s exactly right. So, I think it’s in some ways, it’s dispiriting to people, because of what Roberts has done. But in other ways, I’ve seen a lot of people refocus and go, we’re so close that it’s really focusing in them in, for instance, on the importance of the election, the importance of… Hey, look, we’ve got probably another 50 or so Judges that we plan to do push to get through this year.

So, I mean, you know, people look at elections and they think God, who’s going to win? You know what, no matter who wins, we can still get another 50, 60, 70 Judges through this year that’ll be on those courts for life. So, there’s still a lot of things to do in getting great judges on the court. And in addition to the Supreme Court, ones everybody is looking at, there are a lot of really tremendous people were putting on these lower courts. And if they need information on that, we’ve got on our website. Or if they want to be behind something that really makes a long term difference, I say get involved with First Liberty, because we’re working on these Judges to make sure that mistakes aren’t made and it’s solid people are going on the court.

Rick:

Yeah, absolutely. Firstliberty.org. And last thing, Kelly, just kind of an overall, still when you look at the report card and like you said, I mean granted, people are frustrated with the one decision on Gorsuch and multiple ones from Roberts. But overall, I mean, in our lifetimes anyway, the Trump team has done a better job of vetting and putting good Justices on the court up and down the line these district Judges and appellate Judges that most people don’t know their names. But I mean, we know these are solid, solid people. So, let’s not let these couple of bad decisions make people think, oh, presidential election doesn’t matter, we get the same thing. It’s not the same thing at all.

Kelly:

No, it’s not. I mean, what has already happened and what will continue to happen this year with regard to judges has changed the courts for the next, maybe 20 years. I mean, because these people were putting on the courts, I mean, the last one that went on the court of appeals, 38 years old. Okay? They’re going to be there 30 years from now. So, I mean, this is who my grandkids and maybe my grandkids kids are going to go before. So, so we are changing the future with the quality that Judges put on. It does make a difference in the future of the country.

Rick:

Kelly, appreciate you so much, man. Firstliberty.org, folks, go check it out today. Make a donation today. Get on the email list. Be a part of the solution. Appreciate you, brother. Thanks for your time today.

Kelly:

Thank you.

Rick:

Stay with us, folks. We’ll be right back with David and Tim Barton.

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Rick:

Welcome back to WallBuilders Live. Thanks for staying with us and thanks to Kelly Shackelford for joining us as well. Be sure to visit his website today, firstliberty.org. And we’re back with David and Tim. Guys, Kelly always has a great read on the court and of course, argues before, well not only federal courts all over the country, but the US Supreme Court as well. So, you know, he’s basically saying, look, Gorsuch was off the reservation on this one decision, but he’s been super good on everything else. And we need to keep that in perspective.

David:

Yeah. And he also keep in perspective that even if Gorsuch had gone the right way on this, we still lose the decision. This was a six-three. So, while Gorsuch wrote the majority opinion, even if he had been on what we considered the right constitutional, biblical, historical side, even if he had been on the right side on this thing, we still would have lost this case. So, it doesn’t change the outcome. But it’s very disappointing that Gorsuch is the one who wrote the majority opinion.

Now, this goes back, you know, Tim mentions we were opening that Kelly had kind of for warned us about some of this. And I remember at the time this was occurring, because I was talking about even at the time and I had some optimism on a couple of grounds. Now, Kelly pointed out that he had had a bad decision, a lower court the kind of indicated this proclivity. And a lot of that even went back.

We looked at his church. Because the church where he attended is pastored by a lady who was very strongly pro-LGBTQ activist. And so, he was attending a church where the leadership of the church was very strong in a non-biblical direction. But the hope I had was that Gorsuch has spent a full year studying natural law, under one of the greatest natural law authorities and that was over and I think, England at the time.

And my hope was that despite the activism of his pastor, that the natural law side would come through, because under natural law, you’ve got male and female. I mean, it’s a binary choice in the mammal species, in the animal species, not in all the plant world and everything else. But in the mammal thing we’re humans are, it’s a binary choice.

And so, my hope was that that natural law side would overcome any proclivities he had from the pastor or even what had been seen in that one case, but that just did not come through. So, this was an area that Kelly had warned about back at the hearings and before that this is the weakness of Gorsuch. Because when all these different people were named for Supreme Court possibilities and when Trump put out the list, he said, I’m going to choose somebody from this list, Kelly and his guys had gone through and looked at every one of those people and pointed out that the goods and the bads about them all. And so that was something that was known about Gorsuch release Kelly pointed out.

The other thing that really stands out to me is Roberts. I mean, he’s been a disappointment. But Kelly has pointed out and this is same thing I’m hearing is that Roberts is wanting the court to look not political. He doesn’t want it to look like it’s an activist court. So, he keeps siding in things to help it look moderate, to make it look like it’s not an activist.

Here’s the problem I’ve got with that. It won’t work that way. If liberals get the court, they don’t care what the court looks like, they’re going to move their agenda forward. And so, if he’s trying to protect the reputation in the court, it’s like, from whom and from what? Because if, say Biden gets on and one or two more justice get there, they’re not going to protect the reputation of the court, they’re going to move their agenda forward. And that doesn’t mean it’s the right thing to do.

But you really got Roberts fighting a straw man here and here’s what I really dislike. The decision where he came down on the wrong side that was just, you know, kind of a gut punch, again, in addition to the one where Gorsuch wrote the opinion. But other things as well, it dealt with the prolife law that came out of Louisiana.

And there was almost an identical prolife law back in 2016 that came out of Texas. And in that decision, Justice Roberts was on the right side and he and his opinion wrote how that the US Supreme Court to strike down Texas law had to go against all the constitutional provisions and had to go against everything wrong. And so, he talked about how unconstitutional the courts action was in that 2016 case. Now 2020, he’s got the Louisiana law, which is almost the identical law. And he says, well, I’m going to strike down the law, because that’s what we did in 2016. No. No. No. In 2016, you said what the court did then was unconstitutional and now you’re going to say it’s constitutional to do something unconstitutional simply because that’s the way it turned out in 2016? I mean, that’s terrible thinking, terrible logic. And that’s the kind of problem we faced with Roberts, is it’s very unpredictable. He’s becoming more and more like Justice Kennedy was and that you really can’t count on him for anything. Had he upheld his own logic from four years ago, then we would have won this prolife case and really sit back Roe v. Wade and Planned Parenthood v. Casey. But because he’s not predictable, even to his own decision from four years ago, that’s the big disappointment.

Tim:

Well, and let me throw in one thing that’s a little off topic, but related to the interview as we’re almost out of time. One of the things that I think is positive certainly in looking at this, is when Kelly pointed out that they would be much more involved going forward. They’ll try to have a louder voice, try to help with Judges.

And you know, when you when a guy like Kelly Shackleford, who has a voice in the room, helping give guidance and direction and decisions and who’s some of these judicial nominees are, that is really, really good news, because you certainly know where Kelly Shackleford stands. You know that he is a pro-America, pro-constitution guy and at the same time, he’s very pro-religious liberty, he’s very pro-family. He is pro-Second Amendment, the things that would be significant and you would care about as a Christian, as a conservative. And the fact that he gets to have a voice in the room with some of these judicial nominees and selections is really encouraging.

And so certainly looking back you see a lot, dad as you’re mentioning with Roberts and the mixed bag you get. But then you have Kavanaugh and Gorsuch who by and large have been really, really good picks and decisions. And not to mention that, I guess 200 something Judges that Trump now has at the federal level, there’s a lot of really good news. And to me, it’s even more exciting when you have a guy like Kelly Shackleford, who gets to have some input in what’s going on.

Rick:

Well, we’ll have him back again soon. Folks, we’re out of time for today. Check out the website, wallbuilderslive.com. That’s the place you can make a contribution as well. Those donations to WallBuilders Live make it possible for us to not only have this program here, but to do all of our leadership training with young people, with pastors, with legislators, all the things we’re doing to save America’s constitution. You can be a part of it when you donate to wallbuilderslive.com.

Thanks for listening today to WallBuilders Live.