The Dangers Of Biden Packing The Supreme Court – With Kelly Shackelford:  What does the Constitution say about the Supreme Court? Who decides how many justices should reside on the Court? Should Biden pack the Court? What does history show happens to the rule of law when the political branch overtakes the judicial branch? Tune in to hear Kelly Shakelford what could happen if Biden packs the Court!

Air Date: 04/27/2021

Guest: Kelly Shackelford

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


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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.

Faith and the Culture


Welcome to the intersection of faith and the culture. It’s WallBuilders Live, and we’re talking about today’s hot topics on policy, faith, culture, elections, and today, specifically, the US Supreme Court. But every time we take on a hot topic, we look at it from a biblical, historical, and constitutional perspective.

We’re here with David Barton. He’s America’s premier historian and our founder at WallBuilders, and Tim Barton, national speaker and pastor and president of WallBuilders. And my name is Rick Green, I’m a former Texas legislator and America’s Constitution coach. Visit to learn more, you can get a list of all of our stations across the country. And that’s also the place you can make that one-time or monthly contribution.

Your donations make the show possible. We’re a listener-supported program, so thank you to all of you out there that have been doing that. And if you haven’t contributed, would you please consider that? Pray about it, and obviously pray for our program as well. You know, this program is making a huge difference out there. Pray that our platform will continue to grow, that more people will continue to listen.

David and Tim, you know, the program has grown over the years in terms of stations, in terms of downloads, in terms of people listening. And we’ve got people that are using this knowledge to get engaged at the local level. A lot of folks that are in office listen to the program, and it helps them make good decisions out there. So this information, this truth that we’re able to put out there through the radio program really is making a difference in the culture.


Yeah, we hear from state legislators, even from some US congressmen who listen to the program, they actually will catch up on weekends, and they’ll download as a podcast. And when they go home and mow their yard or whatever they’re doing, they listen to it. And they mentioned how often they’re encouraged by Good News Friday, and enjoy some of the constitutional thoughts on Foundations of Freedom Thursday, and just the interviews along the way.

Welcome Kelley Shackelford

So there really is a lot of powerful content here from some of our friends who are really special people. Actually, we have a very good friend on the program with us today, Kelly Shackleford, who is going to give some insight with a lot of talk going on about expanding the US Supreme Court and some of this committee that is just going to explore, but then these House members who are already committed to it, and what that would really look like.

But in the midst of that, we’re able to provide a lot of expert content from people coming on in the program that we get to interview and share those with people. And it really does not only encourage everybody who’s listening right now, but a lot of people who are elected politicians, there’s a lot of pastors, a lot of teachers, a lot of parents. And so this is something, this is a program that is helping inform, engage, encourage people along the way, and it is making a difference in the nation.

And certainly, all the people that partner with us to help make it possible, we’re so grateful for your partnership, and we’re believing that you get to enjoy some of the reward from some of the fruits this is producing, as God is using this program to make a difference. So thank you for praying for us. Thank you for supporting us. And you can know that God is using this program to help reach people and make a difference in the nation.


Well, and Tim, you mentioned the court, I mean, this is, I don’t know how, you can’t exaggerate this. I mean, this is a massive issue. And you know, it’s been kind of talked about a little bit over the last year, even a little bit during the campaign. I think maybe we just kind of assumed Biden wouldn’t win, it wasn’t going to be an issue, he wouldn’t have the opportunity to pack the court. 

And even after he won, it was kind of you know, that wasn’t the top issue, so people didn’t talk about it much. But the idea of him adding four justices to the court and wiping out any chance of a conservative majority on any issue is being hotly debated now.

And so, let’s back up and just talk about, what does the Constitution say about this? Because some people are asking me does the Constitution actually say it has to be nine members? 

What Does the Constitution Say?

So let’s talk about what the Constitution says, who has the power to decide, how many members will be on the Supreme Court, and then from an immediate application, what happens if the Congress and Joe Biden do this? So let’s start with the constitutional requirements under Article 3.


Yeah, if you go back to the Constitution, it’s set up three branches of government, and it gave directions on how you populate the legislature, how the election should occur: the states choose senators, the people choose the House members. It’s set up the process by which you populate the presidency and his administration. And it set up the process by which you populate the judiciary.

Interestingly, very little was said in the Constitution on the third branch, judiciary, it just says there shall be A Supreme Court. So the only thing that the Constitution requires for the judiciary is A Supreme Court. It doesn’t tell you how big it is. It does tell you that there’s original jurisdiction, at least three areas, and there’s three other areas mentioned. 

So you’ve got some half a dozen areas that if these areas come up, if a state sues another state, that goes to the Supreme Court; if a citizen of a state sues another state, that goes to the Supreme Court; if a foreign nation sues America, that goes to the Supreme Court, but everything else, it’s up to Congress, whether it goes to the court.

So what happened was you said there will be A Supreme Court and it says any other courts below that is up to Congress. So Congress gets to decide how the Supreme Court looks, will there be 48 people in the court? 

Will there be one person on the court? What will the court deal with? While it gets to the half dozen issues in the Constitution, but do we want the court to deal with issues like abortion, or prayer or other things? Well, that’s up to the Congress to decide.

And all the way through, how much does a Justice make? If you have a Justice on the court, is it going to be $10 a years? Is it 10 million a year? That’s all decided by Congress. 

How Many Justices Should There Be?

The only thing the Constitution says about the Supreme Court is there shall be one. So originally, George Washington was given the choice of six justices for the Supreme Court, because that’s what Congress decided: you get a Chief Justice and five Associate Justices. And over the years, it’s gone between 6 and 10. Since 1869, we’ve been set at 9 Justices.


And let’s point out that’s interesting that under George Washington, it was an even number of Justices. Because you would think, well, you need an odd number so that if there’s a tie, there’s always a tiebreaker. And then, so therefore, you won’t have this split where it’s 3:3. It is interesting, looking back historically, that they were not necessarily worried about having a judicial system where it was going to be a 3:3 tie, because they thought, well, these guys know the Constitution, they know what’s legal, they know what’s moral, and so they’re probably going to generally be on the same page in some of the discussions and arguments.

So it’s just interesting that even back then, they weren’t worried about the division of the court so much, they thought they needed an odd number so that there would always be a winner in the split decisions.


You’re right, Tim, it didn’t matter if it was even. Because if you read the Constitution, is not a partisan issue, is not a divided kind issue like we become today. So it was 6 under Washington, then they expanded it. And so since 1869, it’s been 9 Justices, so essentially, 150 years, it’s been that way. 

And now we’ve got this proposal that we don’t like the number of conservatives who outnumber the liberals on the court, so let’s get more liberals. And people aren’t liking that. The polling I’ve seen says 34% of the nation opposes expanding the Supreme Court.


Well, and let’s be very specific. They’re not suggesting we need more Justices, because we need a better justice system. When they’re suggesting we need exactly 4, well, why is for the magic number? Why not two? 

Well, why not 7? Why do we need 4? Well, there right now are 6 Justices that were appointed by a Republican president, there are 3 Justices that were appointed by Democrat president. And so a 6:3 is what they see when they look at the court. So if you add 4:3, then it’s 7:6.

What They Are Proposing Is Unconstitutional

So right now, it doesn’t seem like they’re just saying, hey, let’s follow the Constitution, because it is constitutional to add Judges to the US Supreme Court. What they’re suggesting or proposing is not something that is unconstitutional. What it is, is a politically motivated powerplay to say we want our side to win. 

And right now we know that Justices aren’t there merely to uphold the Constitution, they are there to uphold the whims, wishes, desires of the people, and even the notion that they think they need 4 Justices, to me is a little humorous. Because of the 6 Justices that were appointed by Republican president, certainly, not all 6 are conservative. At best, there might be 5 that are conservative. And maybe, depending on the issue, you’re only going to get 4 of those.

Nonetheless, certainly with the suggestion of having an addition of 4 Judges, it is definitely a motivated position politically for power. And when we’ve seen that happen historically, in other nations, it has not gone well for the nation. From Venezuela, we can go down the list, when you start packing Judges to just get them to acquiesce to the desire of whoever the leader is, that’s a dangerous place for the nation.


Well, and thankfully, Kelly Shackelford and the guys over at First Liberty Institute are doing a phenomenal job of keeping an eye on this and actually trying to inform people about how important this decision is. Kelly’s going to be with us when we come back from the break. You’re listening to WallBuilders Live.


This is Tim Barton from WallBuilders with another moment from American history. The Second Amendment to the Constitution which guarantees to every individual the right to keep and bear arms has been targeted for years now by those who are determined to dismantle the individual right to self-protection. Opponents argue that only the militia, the military and law enforcement are to have and use firearms.

But those who wrote the Second Amendment strenuously disagreed, including Founding Father Richard Henry Lee, a signer of the Declaration, a president of the Continental Congress, and one of those who actually frame the Second Amendment. He declared “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young how to use them.”

For more information about Richard Henry Lee and the history of the Second Amendment, go to


Welcome back to WallBuilders Live. Thanks for staying with us, Kelly Shackleford back with us from First Liberty Institute. Kelly, always good to have you, man. Thanks for some time this afternoon.


Happy to do it.


Hey, man, you guys already have a fantastic website up, That’s exactly what’s happening here. I guess, the Biden administration wants to wants to do a deja vu of FDR.



It’s really frightening. You know, I don’t know, I think everybody knows, by the way, for those of us who are not French, you know, coup is spelled C-O-U-P, so It’s got great info. But packing the court is what we’re talking about. And except you don’t know, it’s when the party in power decides to add Justices to like the Supreme Court or the lower courts, but to the Supreme Court to simply get the political decisions they wish. And…


So it’s not about efficiency? It’s not that you need more Judges or more courts to deal with the backlog? You literally want to change the philosophy of the court?


Yeah, and, which you don’t have to be really smart to figure that out. Right now, there’s 6 conservative Justices and 3 liberals, and so they want to add 4. You know, wow, interesting how that adds up to…


Perfect math, just happen to be. Yeah.


But the thing that people don’t understand is what this mean. You know, there’s bad bills, bad policy, and it’s harmful to the country. This, and I don’t speak very extremely, but this would destroy the country. 

Because we’ve looked at it or what happens when other countries have done this, when the political branch overtakes the judicial branch, the judiciary is no longer there: the rule of law, the independent judiciary is gone. You can’t start this process and stop it.

And so the best way I can put it, Rick, is whatever constitutional right you value, which I would imagine there a lot of them, they’re gone. Because you no longer have constitutional rights, you only have the right which the majority party wishes you to have. Because they can just add Justices, however many they need to make sure you don’t have that right. So this is a game changer. It’s a restructuring of the country.

Look At Venezuela

And look at what happened in Venezuela with court packing. Look at what happened in Argentina. Look at what they tried to do in the United States in 1936, and 37. And when the people understand what’s going on, like they did in 36, and 37, the backlash is huge. Democrats were in total control. 

They even stopped this themselves from happening, but the country was so angry with the attempts that seven senators were thrown out office and 72 House members, the country reacted very strongly.

And so I think the only problem now is people in America, most of them don’t know this is being attempted, don’t know what this means, and they’ve got to be educated.


It’s very interesting, something you just said about the Democrats even stopped their own party. We’ve had Justice Breyer come out and say how dangerous this would be to the court. There’s, of course, the video going around of Joe Biden himself years ago saying this was a boneheaded move by FDR to attempt to do this. Do you think there’s any chance that the Democrats will save themselves from this?


I don’t think we can count on that. Do I think that Joe Biden thinks this is a good idea? I don’t think he thinks it is. You look at some of Nancy Pelosi’s comments, do I think she thinks it’s a good idea? No. But I think we all can see what’s happening right now in the Democratic Party. 

There are leftists who have taken over the party. Even if others disagree with them, everybody is fearful to go against them. And so they’re voting for things like HR1 unanimously out of the house, even though every one of those Democrats doesn’t agree with that. It’s a very extreme thing that they’re voting on. So they’re kind of being told how to vote.

So this is really a danger. This could happen. And if it happens, our country’s over. And so that’s why people need to really sort of step up. I think the polling, as the more people get educated, we’ve done some polling, we’re already at like 2:1 against this, but as you start to educate people, it starts to rise even more. And that’s what’s got to happen. And so all of the listeners to WallBuilders, they need to be the Paul Revere or Paul Revere for our country right now and they need to educate their friends or neighbors, everybody else as to what’s going on.

And that’s why we did the website at so they could get the information. They can go as deep as they want. We’ve got scholars’ articles. We’ve got the history in Argentina and Venezuela and all this and what happened in 1936 and 37 in the United States. 

So we’re going to be rolling out stuff every day, if not every week, really just letting people know what’s happening and rolling out new information, because this is a battle we have to win.


It sounds like what you’re saying is it really is going to take almost overwhelming force, I mean, there’s going to have to be a citizen uprising, almost of literally? It’s not just your state rep or state senator, or US rep or senator from your state hearing about it.

I mean, all over the country, they’re hearing about it over and over and over again, to where out of basically fear for their job, they decide not to go down this road?


Absolutely. And I’d say, think of what happened back in 1936, or 37, you’ve got the most popular president in the history of the country, FDR, and you’ve got a Senate that has 80 Democrats out of 100. They could not get it through because of the American people. 

And those senators starting to stand up and say this is tyranny. You’re asking us to participate in bringing tyranny on the US. The sponsor in the senate died of a heart attack before it was over.

And so this is going to require America, because you’ve got a one party control right now. And if they want, this doesn’t take a constitutional amendment, majority vote, boom, our country is never the same. And they say, yeah, but the filibuster, yeah, but that can go with the majority vote itself. 

So if the people, this is a great one to fight on, because it’s so clean, I mean, as you said, you’ve already got Ginsburg, who spoke against it. You’ve got Briar, people who are principled understand, this is a short term hey, we’ll take over the court. But anybody who has the understanding is you’re destroying the court, you’re taking over the court, is incredibly shortsighted, because there is no court after you do this. And we’ve got to stop that from happening for everybody’s good. 

No Rule of Law?

I don’t care if you’re on the left, or the right or whatever else. This is our Constitution. This is the rule of law. This is three branches of government. And we can’t let that go.


This is a structural fight, really. I mean, it’s literally keeping the structures in place that have allowed us to be so free, And as you mentioned, coup is C-O-U-P. So, share the link with your friends and family. Kelly, this is going to be a little bit in the weeds, and probably I should wait until we see how this fight goes down. 

But one of my concerns is that even though it was defeated in the 30s, it’s still you saw the court itself shift dramatically in response to the attempt to pack and things that they had ruled unconstitutional, like federal minimum wage and all kinds of things, they’ve literally reversed themselves and started approving a lot of FDR’s plans.

Is there any fear of that with the 6 we’ve got, I think you and I would both say we really only have 5 and any one of those can go the wrong way to any time, but those 5, do you think they are the type that would be intimidated by something like this? Or do you think they’ll hold firm whether we win this or lose it?


It’s a real danger. I mean, what happened under FDR as it was defeated, but the court was compromised for decades as a result. They started changing opinions, and the new deal and all this stuff that came through. 

And that’s exactly what could happen to us. I mean, do you think of, we’ve gotten all these great Justices on the Supreme Court now, where we’re actually going to look for the original meaning of the text of the Constitution and statutes. 

And we’re starting to see great turns in the law. That can all be lost, because they could start realizing, hey, we’ve got to protect the court from ultimate destruction, so we’ll just start changing our opinions. And that would be wrong.

It’s not what Judges were supposed to do. But when you’re trying to politicize the courts like this, is what happened in 36 and 37. And if we can be really successful in crushing this, and really bringing the whole country to speak against it, which I think we can and that’s what our goal is, then we can even stop the drift from occurring, because the court will realize we’re on their side, and being good Judges and Justices, and not this politicization of the courts.

We Must Fight Against It.


That is a great point, man. The better we do here in fighting back against it, the more ammunition we give Clarence Thomas in those backroom arguments he’s probably having with Justice Roberts, because I know you can’t say this because you have to argue before him all the time. 

But I could see Roberts going that way of trying to soften the court to save the court and all that, and I bet Thomas back there oh, no principles, principles, principles, anyway.

Hey, brother. Okay, I got to close out with this. I can’t believe I’m even going to allow this. But how does it feel for your law school alma mater to be the national champions?


Well, you know, I was undergrad and law school, but Baylor…


Oh, you did undergrad at Baylor too, I can’t believe I’m having you on the program, I can’t believe this.

Kelly: Well, you know what, I thought it was cool on a number of levels. Number one, it’s great for Baylor obviously. But number two, to have two religious universities, Christian universities against each other in the championship, you know, a Protestant, and a Catholic University playing was neat. 

And then the Baylor Coach, what a solid individual to come in a program where there’s a guy where there’d been a murder, and where the program was on probation, and intentionally come into that and say, I think I can rebuild it, and then end up in the national championship. 

And then afterwards, when Jim Nantz answering in microphone, what does he say? He says, this team was all about J.O.Y, Jesus, Others, Yourself. That’s an American story right there. So I thought it was cool on a lot of levels. And it did seem to back, that’s where I went.

First Liberty


Amen. Good stuff. Well, you’ll be happy to know we actually covered it on our Good News Friday program. And Tim shared a lot about what the players had said, and just the testimony, the coach, I mean, it really has been a really cool thing. Kelly, thank you, man. Appreciate your time, brother. 

Thanks for all you guys are doing. Well, of course, give links to the website today and encourage people to go to First Liberty and to donate as well, because Kelly’s out there winning all these legal battles because of people just like you that are listening, donating to give them the fuel to fight that fight. Kelly, appreciate you, brother.


Thank you, Rick.


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

The American Story

Hey, guys, we want to let you know about a new resource we have here at WallBuilders called The American Story. For years, people have been asking us to do a history book, and we finally done it. We start with Christopher Columbus and go roughly through Abraham Lincoln. And one of the things that that so often we hear today are about the imperfections of America, or how so many people in America that used to be celebrated or honored really aren’t good or honorable people.

One of the things we acknowledge quickly in the book is that the entire world is full of people who are sinful and need a savior, because the Bible even tells us that all have sinned and fallen short of the glory of God. And yet what we see through history, and certainly is evident in America is how a perfect God uses imperfect people and does great things through them. 

The story of America is not the story of perfect people. But you see time and time again how God got involved in the process and use these imperfect people to do great things that impacted the entire world from America. To find out more, go to and check out The American Story.


We’re back here on WallBuilders Live, thanks for staying with us, back with David and Tim Barton Special thanks to Kelly Shackleford. Guys, First Liberty always does a great job of informing us on these chord issues. This one may be the most important one they’ve ever tackled.


Well, it’s interesting, because we talked earlier about how the Constitution gives the authority to Congress to add more Justices, they can do that. But this is the point, and Kelly really made this well, even though you have the authority to do that what this move is intended to do is violate constitutional checks and balances. 

Pelosi Has a Real Situation On Her Hands

They’re wanting to take the court out of being a check and balance and want it to agree with the legislature or the president. So that’s why even though Congress has the authority to do this, the motivation for why they’re doing it is to violate the Constitution. 

So it’s constitutional to add more Justices, but not if you’re trying to negate the third branch, not if you’re trying to eliminate the checks and balances that are supposed to be there. And that’s their motivation.

And Rick, you asked the question whether maybe they’re doing this for fear of their job they’ve decided not to go down this road? It’s interesting to right now Pelosi has a real situation on her hands, because the public polling is turned pretty rapidly in a number of areas. They only have a five vote majority in the House, so five seats switch hands, they no longer have a Democrat majority.

So what they’re looking at right now, as people are reacting against them on the border: that’s come back to bite them. They’re talking about let’s repeal the 2017 Trump tax cuts: that’s coming back to bite them. And now they’re talking about Judges, and only 34% support that. 

So they’re making all these proposals in the last couple of months, and it’s just not going over with the people. And so if she wants to continue to be Speaker in the house, she’s got to keep those five votes.

Right now, we know that there are 46 battleground districts in the US House. 46. So Democrats are in a position having to defend 46, and if they lose 5, then they lose the majority. So I think that there’s a good chance that they may back away from this just in hopes of trying to keep a majority, we’ll see.

But the other thing that Kelly pointed out is congressmen need to hear from us on this and they do. They need a real shot over the bow. So write these two numbers down or remember whatever, call your congressman, call your senator and say this is crazy. Do not do this. Here’s the numbers, 202-224-3121. 

Contact Your Congressmen

Call that number. That’s a Capitol Switchboard, say I want to talk to Congressman, I don’t know, Jim Smith from Illinois or whatever. I want to talk to the senator, whoever from Washington. 

Ask for your senator or ask for your state, and they’ll connect you and then say, hey, I’m calling about this thing of expanding the Supreme Court. Absolutely, oppose. I’m a constituent under your district. I’m from your state. I’m from your district. So again, 202-224-3121, call and let Congress know this is a super bad idea.

The Dangers Of Biden Packing The Supreme Court – With Kelly Shackelford


Well, as Kelly pointed out, there’s likely many Democrats who are not in favor of this position, even Biden, Pelosi have shown some hesitancy to it. But as Kelly pointed out, many Democrats are just scared to challenge the louder and extreme members of the group, they don’t want to come out on the wrong side. 

But with having some positive peer pressure, some correct peer pressure, they could back away and make a good decision. So you’re getting involved, you contacting them, can be very significant for what happens going forward. So definitely reach out, call, let your voice be heard, make a difference in this. Say we do not want to expand the Supreme Court, at least not in this political tumultuous time.


And especially when it’s purely for the purpose of flipping the philosophy of the court so that the left can cram down their policies and not have any of them overturned by the Supreme Court. Folks, this is going to be an ongoing battle probably going to last throughout this year, and maybe in the next year. 

So stay tuned, pay attention, and make sure you follow that website that Kelly Shackleford gave us today. Thanks so much for listening. You’ve been listening to WallBuilders Live.