Analyzing the Biden Plan to Remake the Supreme Court
August 1, 2024
Host: Hon. Sam Rohrer
Guest: David New
Note: This transcript is taken from a Stand in the Gap Today program aired on 8/1/24. To listen to the podcast, click HERE.
Disclaimer: While reasonable efforts have been made to provide an accurate transcription, the following is a representation of a mechanical transcription and as such, may not be a word for word transcript. Please listen to the audio version for any questions concerning the following dialogue.
Sam Rohrer: Hello and welcome to this Thursday edition of Stand In the Gap Today, and it’s also our bimonthly focus on the Constitution and American history with constitutional attorney, historian, author, and speaker David New. Now on Monday of this week exiting Joe Biden offered a formal proposal with his recommendations to reshape or remake in significant ways the US Supreme Court. Now that proposal is the focus of our program today, which I’ve simply entitled Analyzing the Biden Plan to remake the Supreme Court. Now, there are a few things that cause presidents, or maybe I could restate it. There are few things that cause Presidents more delayed, in some cases grief than their nominees to the Supreme Court. Haven’t you all seen this over the years? It’s kind of like the golden prize if they can put somebody there. If a president has the good fortune to nominate a Supreme Court justice, this will offer him a chance to impact American law and public policy long after he leaves office.
Sam Rohrer: So in the minds of most recent US presidents, in my opinion, clearly driven far more by their desire for some type of political legacy than it is for their ardent support and defense of our constitution and our constitutional form of government. They believe that a successful appointment to the Supreme Court who would share the president’s political views on key cultural issues as an example that is to most Presidents success because it outlasts their four or eight years that they might be in office. Now, while Joe Biden knows it’s impossible or a greatly unlikely, at least for him to get his plan into law in the remaining months of his administration, he clearly wants to do his best politically to make the Supreme Court an issue in the November election. You say, why is that? Well, he said as much as so, but he believes that the more the public is focused on the Supreme Court, the more it will be focused on the reversal of Roe v.
Sam Rohrer: Wade and therefore can make the issue about abortion. And the President knows, and this is sad, but it’s true. Every time the issue of abortion has come up for a vote on state level, at least since Roe was overturned, the Pro-death side has won. He and his handlers are hoping that the same thing will happen this November. And he’s hoping that the abortion issue, the reversal of Roe v. Wade will propel VP Kamala Harris to the White House. Sadly, despite her deficiencies, based on what we have seen the past few years, these two were to be inextricably linked. He might well be right. So with that and some other thoughts we’ll develop as we go through the program today. David New thanks for being here today. We have very current issue to discuss.
David New: It’s so very nice to be with you and blessings to everyone who has joined us today.
Sam Rohrer: And David, let’s just start out with this before you begin to unpack the elements of the recommendation and then in the rest of the program, we’re going to get into more of other attempts in the past because I think it really is pretty interesting. But from an historical perspective, can you share anything relative to actual attempts of past presidents to reshape the court or the fundamental arguments used to either reshape the court or arguments made to not reshaping it? It’s been a big issue, but it hasn’t just started with this recommendation by Joe Biden.
David New: Oh no. Presidents have been dealing with Supreme the number on the Supreme Court for quite some time. The Constitution does not say what the number should be When it first began under the Washington Administration, the number was six. And one of the first times where the number was played with for political reasons was the transition from President Adams to President Jefferson. President Adams was a member of the Federalist Party and President Jefferson was a member of the Democratic Republican Party. So there wasn’t just a change of people from one person to another, shall we say, but it was a change of political parties and what they did, since the number was set by six by Congress, the Adams administration in the last days by law lowered the number to five so that when President Jefferson got into office, he could not appoint a Supreme Court replacement for the one that went away.
David New: Well, of course it wasn’t very effective. Jefferson simply reversed it. He had his Congress reversed it and got it back to six, and that solved the problem. The gamesmanship with the numbers on the Supreme Court ended with the number nine on April 10th, 1869. That’s April 10th, 1869. It’s been set at nine ever since that date and we’ve settled on it. The other thing I would like to say about our preliminary remarks is that you’ve heard that, I heard when discussing this over the airwaves that the Constitution established three equal branches of government. That is not true. That is definitely not true. I don’t know how that got started, but people have been saying it for a long time and it’s completely false. The Congress is the most powerful branch in the United States government. Why? Because they can make the rules. He who can make the rules can make the gold.
David New: 51% of the US Constitution is about Article one 51%. Now the President is the most powerful in terms of it being a one person. And of course the President now probably could be argued is more powerful than Congress because Congress has yielded so much of their power to the President. But that’s the real powers in Congress and then comes the Supreme Court. And so they’re actually third in the ranking of power in many ways, although that changed with the 14th Amendment, the Supreme Court has more power than the President and Congress combined because of the way they have interpreted the 14th Amendment. They are a superpower. They’re the only branch who effectively can amend the Constitution without going through Article five. It is illegal, but they can do that. It shouldn’t be done, but they do it anyway. And they started to exercise this power a hundred years after the 14th Amendment was ratified. It was ratified in 1868 and they started getting busy about a hundred years later to where they can really take superpower. So they’re a superpower right now, and in some ways, like I said, they’re more powerful than the president in
Sam Rohrer: Congress. Okay ladies and gentlemen, you get the idea. That is why over the years and Joe Biden recommendations, the operative view is if you can just control that group of nine, well, you can then control Congress and everyone else. That’s why they view it as such a prize. When we come back, we’re going to unpack a little bit what Joe Biden actually has as the contents of his recommendations. Well, David, before we begin to analyze the Biden proposal, ladies and gentlemen, if you’re just joining us, I’m talking to constitutional attorney, David New who’s with me every other Thursday on this program for our constitutional emphasis. And our focus today is the recommendation by Joe Biden made on Monday of this week to remake, to reshape the Supreme Court. So if you’re just joining us, that’s what we’re stepping into right now. So anyways, David, before you begin to unpack exactly what’s in that, here’s a question I have for you because a lot of people don’t know this mort to structure, but the president made his formal recommendation. Now here’s the question I just want you to ask. When a president makes a recommendation like this, to whom is he presenting it and in what form? Is it being made a simple letter, an official presidential directive? Is he directing it to Congress to the Speaker of the House? Do you know anything about those details? He just doesn’t get up and present this idea in a press conference to the American public. He has to actually get it into the process. Do you know what that is?
David New: This recommendation that the president made on Monday was made to the public at large. So it was not made to Congress or anything. The Constitution says there are two sources. Amendments of the Constitution can come from the first, or one of them is Congress and the other one is the States. So if this was to go forward, one of those two entities will have to take what President Biden said and propose it officially. So this is not an official proposal. It can’t be, the President has no role in amending the Constitution of the United States, or she doesn’t have any role in proposing it. They can do it, but no official role and they don’t assign amendments when they’ve been passed. Presidents don’t sign them, they’re not required to. There’s still the law. They kept the President out of it completely except for this type of thing before the
Sam Rohrer: Public. And I think that’s great and I wanted to ask you that because in the first segment we suggested, I suggested you and I had talked about it, that in reality there was another motive for the President bringing this up. And that is to try and make it an issue going into the election to make people want to talk about this proposal which takes him to the court, which takes him to Roe versus Wade, which takes them to abortion and the fact that they think that will be a winning issue for Kamala Harris. So that’s why I asked you that, and I wanted that to be clear to all of you who are listening, that it’s just an idea. There’s nothing that’s actually gone into any kind of a formal work. There’s nothing that is actionable because he doesn’t have the basis on law to do that. Alright, so that being the case, let’s go into it now, David, you read the proposal, provide an overview of the substance of the content, not the substance, but the content of what is in that recommendation.
David New: Sure. Let me read from the White House webpage for this proposal. It’s kind of interesting because there’s one sentence in there that’s quite interesting that tells you why this has happened. Here’s what it says, term limits for Supreme Court Justices. Congress approved term limits for the presidency over 75 years ago, and President Biden believes they should do the same for the Supreme Court. The United States is the only major constitutional democracy that gives lifetime seats to as high court justices. Here are the reasons. Now there are three of them. Term limits would help ensure that the court’s membership changes with some regularity. Number two, make timing for court’s nominations more predictable and less arbitrary. Number three, listen to this. This is the golden apple and reduce the chance that any single presidency imposes undue influence for generations to come. I wonder which President Biden has in mind and then it ends this way. President Biden supports a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court. So President Biden is very upset that President Trump got three nominations in and he sees that as affecting the future generations to come. That third reason is the real motivator for this whole thing,
Sam Rohrer: And I think that goes right there. Alright, now let’s take it further unless you have something else to state on that. Let’s begin some discussion here early and then I may follow up on some other things. Actually, let me come back. I want to read something here on one hand before I go into the other, some historical efforts in the past, but his recommendation of the 18 year term limits, there are those who would look at it and say, well, you know what sounds good because you would make this court responsive. I’ve seen that word responsive, a generationally reflective perhaps because right now you just have an out of touch group of old guys and women from the past. I mean, some have said that it somewhat sounds like, well, you know what, that’s a reasonable thing. But alright, and here’s the question. I just want to get your thoughts on it. I’ve expressed myself on term limits when I was in office here in Pennsylvania, but what do you think about the concept, the merits of term limits on justices to the court? Good idea, bad idea, pros, cons?
David New: Well, if this rule about term limits for 18 years had been in place already, if it was an existing rule, three of the justices on the Supreme Court right now would have to go. That would be Clarence Thomas because he’s been on the court for 32 years. That will be Chief Justice John Roberts. He’s been on the court for 18 years and that would be Justice Samuel Alito, he’s been on the court for 18 years, so he’s able to get rid of three of the worst characters just with this little rule here. Now it’s interesting that, so she’s been on there for 14 years, so she would only have another four year stint and Kagan, she’s been on there for 13 years, so she’d be gone in five years. I’d like what the Constitution says. The problem is not term limits, in my opinion. The problem is the way the Supreme Court handles the 14th Amendment. There needs to be a way to deal with that because this is crazy. The way this government operates today, the Supreme Court, the way they interpret the 14th Amendment is so corrupt and so abusive. It’s beyond belief.
Sam Rohrer: Alright? And I would agree with you on that. I mean even to that extent, David, I mean even in the past when I was in office, I said, you know what term limits, I think people ought to voluntarily term limit themselves, not stay in there for life. But I found that at the end of the day it were the bureaucrats, the staffers, those who continue on forever, that actually do a lot of the work behind the scenes in the term limits sometimes can be a way of missing the point. The bigger issue is that you’ve got people who are not upholding their constitutional oath as an example or that kind of thing now. Alright, and that’s basically where you went. There’s a bigger issue, the 14th amendment, and it’s not the fact that you have somebody who’s been there for more than 18 years. Alright, all good points. Now there’s not much time, but just you can introduce it here. Past arguments, there have been a number of them. You’ve come up and identified at least five. I believe that in the past there were arguments, recommendations for reshaping the court that received some level of serious discussion, but none of them have gone forward. You may want to just introduce the first one a little bit here and then we’ll go into more detail in the next segment.
David New: Sure. For one thing, let’s read article three where it says, this is the key question that says, or the key statement shall hold their offices during good behavior. Now this is an important phrase and there’s a hidden jewel in that phrase, good behavior. What is good? The word good, that’s the only time word good appears in the entire US Constitution and Congress. When they evaluate the behavior of a Supreme Court justice, whether they’ve complied and met that standard, how would they make that decision? Now we’re told that the Constitution established a secular government. Well how do you define the word good from a secular point of view? Where would you go in 1787 to do that? It is very, very clear that when the framers of the Constitution wrote the word good behavior, they had Christianity and its general principles in mind for what was or was not good behavior. There is a hidden jewel about religion just in that word. Good right there,
Sam Rohrer: David. That’s interesting and maybe I’ll come back and look at that, maybe not, but you’ve opened up something there that is remarkable and ladies and gentlemen, that has a lot to do with the redefinition of terms, how much we’ve talked about it in this program. Those who want to change the constitution, change the foundation structure of our nation. You change the definition of the term to redefine who God is, what good is, what justice is. You just redefine the terms and then you can go wild. David hit on a real extraordinary point right there. Well, that’s all we’ll do at that point for a moment when we come back, we’ll continue in some of these former recommendations. Well David, we’ll continue here. But that last comment you made about good behavior, ladies and gentlemen, I just went to the Webster’s 1828 dictionary, which is really the prevailing dictionary that covered the understanding of words that you will find in the Constitution or you will find in the declaration and it prevailed for a long time.
Sam Rohrer: Now they don’t have the phrase, I’m looking at the definitions now at the dictionary. It doesn’t say good behavior are two words put together, but the closest one to it was as in a good person, good actions. And do you know what is in this dictionary? It says this, it takes having moral qualities best adapted to its design and use or the qualities which God’s law requires, virtuous, pious, religious applied to persons and opposed to bad, vicious, wicked or evil persons. And then there’s a verse, Romans five, seven, this is all in the dictionary, yet pair of venture, a good man, some would even dare to die. That’s the definition of that. So good behavior, David. Yeah, you’re exactly right on. Boy, wouldn’t it make a difference if we were to begin using terms like good in regard to how the Constitution and those at time believed it to be?
David New: And that was a wonderful quote. Thank you for introducing that into the discussion today. That really was wonderful.
Sam Rohrer: So let’s walk on, right. So strategies, some previous you had identified five, I don’t know David, in your research if there were more, you just picked these out or what, but let’s walk down through as many as we can. This segment
David New: Strategy. The first one I want to discuss is a strategy that was proposed and approved by the general assembly of the states in 1962 when they saw what was going on in the Supreme Court at that early date, they started to take action and they approved by vote of 21 states to 20 against with five states abstaining. They approved of something called a Court of the Union, a court of the Union, and what this was a higher national court and it would require an amendment to the Constitution to make it happen. Just like to change the term to put term limits that would require an amendment to the Constitution. This would also, it would create a national court above the Supreme Court. And what would happen is if the Supreme Court made a decision affecting the state governments, basically the power is reserved under the 10th Amendment to the States. Then it can be appealed to the Court of the Union, which would consist of the chief justice of all 50 states. And they would come together and they would decide whether to uphold or to affirm the US Supreme Court’s decision or to reverse it or to do something. So it would create an appeal above the US Supreme Court. This is a very interesting idea.
David New: I’m not sure I would go for it, but one thing it would do. Remember ladies and gentlemen, when they did Roe v Wade, the vote was seven to two on the US Supreme Court. So there was a solid majority for roe, I’m sad to say. But when it came to gay marriage, the vote was five to four in 2015. In the Feld case it was five to four, that means one single vote put all this junk in the public schools with homosexuality and all this garbage came in and it was one single vote. That is insane. That is absolutely insane. That one single vote for such an important decision made the deciding factor five to four, that is not constitutional, that is not American. It’s about as un-American as you can get in Ireland in 2015, they also decided the issue of gay marriage like the Supreme Court did in 2015.
David New: But in that case, the public, they held a referendum. I’m sad to say they voted in favor of gay marriage, but at least the process was legitimate. Now, if there was a court of the union, this would now go what happened in Texas in 2015 that would be appealed to the Court of the Union and you would have another chance so that the decision would not be five to four, there would be a better decision made. It is so unjust the way we run this country right now through our court system, one single person having that much power on that one day changed America forever and not for the better.
Sam Rohrer: Absolutely David. So a quarter of the union, again concept part of that would be great, protect the state’s rights, perhaps more their 10th amendment preservation. Anyways, that was there discussed, hasn’t gone anywhere, but you talked about by one vote. So I’m going to jump ahead to what strategy number four because that ties into that because a previous recommendation was to limit the power of the Supreme Court was to require a super majority on the US Supreme Court that could prevent, would it not something happening by one vote. This is another
David New: Way to protect us from stupid decisions that have such profound implications where one human being made ultimately the decision one person, a five to four decision in 2015. And that is to require a super majority on the US Supreme Court. Now ladies and gentlemen, the Constitution says nothing about majority rule, absolutely nothing. So it does not say five to four is the ruling. Nowhere says that. And in fact if you’re going to start your Supreme Court with six members, apparently they weren’t looking for majorities. So here, if we had this type of thing, were to reverse a state court decision or to reverse a state law requires a super majority. You can make it six to three, you can make it seven to two. If you really want to make it tight, make it eight to one so you could Congress and this would not require an amendment to the Constitution. Congress can do this. Congress has the authority under Article three, section two and the third paragraph and the words that says, and I’ll read it both as to law and fact and here’s the golden words with such exceptions and under such regulations as the Congress shall make. That means if Congress wanted to come in and say from now on when it’s something from a state, something that that state is interested in that wants to have, but the Supreme Court reversed it, you’ve got to have a super majority of 63 or 72 to undo it.
Sam Rohrer: Alright, well you’re making the case for that. That would be perhaps a good idea. Now Dave, we’re not going to be able to go through all of these five. Let me just follow back on this because you made a statement that the idea of a majority vote on the court is nowhere in the Constitution and this recommendation for a super majority so that you didn’t have the problems you’ve cited with a one vote difference making law for the entire country and bypassing Congress who should be doing that? I want to come back and ask you this question. If there is nothing that talks about majority and the original number was six, which means it could be three and three tied, what were the founders’ understanding of then how the court’s determination on a case before it would be established? How would they know if the court was ruling for or against? They didn’t have to have a majority of some type.
David New: I’m not exactly sure to be absolutely honest with you because if you have six, it’s easily that you could see you could have three and three. I think what was happening is that the Congress wanted the Supreme Court to come up with unanimous decisions. I think that’s where they were going. Or that you could have six different decisions. I know Chief Justice John Marshall wanted to push the members of the Supreme Court who is the greatest chief justice in US history. He wanted to push the US Supreme Court to make unanimous decisions because it would give the court more credibility with the public and with Congress and with President and it would give more prestige and respect to the court if it was a unanimous decision. So we don’t have any specific statement about what you’re asking.
Sam Rohrer: No, but it’s a good question. I’m aware of no, but it’s a good question and I think the way you answered it would be my understanding perhaps is thinking about it, here’s my thoughts, we’re just about done with it. But the belief was the Constitution is clear, it should be interpreted the same. So if you’re a constitutionalist and you take an oath to support the Constitution, you should come to the same conclusion. Ladies and gentlemen. It’s kind of like saying, alright, I’m going to define what is good. We use that word well, if you go to the Bible, the foundational law and interpretation to define what is good, you will have a unanimous opinion. Now you have somebody may disagree with it, but that’s different. It says what it says. And David, in reality, if that were to be required unanimous, you would’ve a super majority, wouldn’t you?
Sam Rohrer: It would be very clear. So ladies and jump, we’re not there. That’s the point. And that’s why there’s so much when we’ll come back. We’re going to try and wrap this up here Now, well, as we go into the final segment here today, hopefully you’ve enjoyed a little bit of this back and forth between David and myself relative to the Joe Biden recommendation to reshape the Supreme Court, have a better understanding of what he was recommending, the fact that what he’s recommending is not, let’s put it this way, official. He’s floating an idea to the American public that he desires most likely based on what he’s saying to make it an issue that will help Kamala in the fall election because it elevates the concept of abortion, which they think is a winning issue and for them it is. That is their issue on that side.
Sam Rohrer: So all of that and then the effort that over time there have been other attempts to make some changes with the court and we talked about what some of those things were in the last segment, so I won’t go through any more of those. But just a reminder that again, hopefully you’ve taken advantage of this, but all of these programs that we do are in text form. You can get it in print on the website, stand in the gap radio.com or on the app Stand in the Gap app so you can hear an audio version and then you can read the transcript of what’s there. And a lot of times on these programs there’s too much to write down or I know you may be in a car right now or some of you listen to this program, some on the West Coast, listen to 10 o’clock at night.
Sam Rohrer: I know and I hear from them and you’re not in a position to write notes, but you can go back and pick these up and listen to them again. And so I just mentioned that to you so that if you don’t grab it all in the program, there is a quick and easy way to access this information again. But as we wrap this up, David, I’m going to read something here, just a little bit of a summary of this from Epic Times. It was an article and I just took out just a little bit of it, but they said this in regard to the Biden proposal. They said this quote citing his 36 years as a US senator and former chairman and ranking member of the Judiciary Committee. President Biden wrote that while he has great respect for our institutions and separation of powers, he’s also saying this what is happening now in the United States is not normal.
Sam Rohrer: This is what Biden is saying, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. And he said, we now stand in a breach. The president wrote what I said there was what Epic Times put together based on Joe Biden’s comments. So David, let’s just as we summarize this whole thing and come to a close, let me just ask you this. The president wants to make changes. We’ve talked about that there are five, at least other strategies of the past to change. We only end up talking about two of them. Super majority perhaps was one or a quarter of the union. And there are others. But here’s the question I have for you. You have alluded to this, but is there any legitimate constitutional or lawful reason to impose term limits on the court or increase the number of justices or do we stand in the breach as Joe Biden said? In other words, here’s the question, do we have a fundamental need to reshape the court? Again, you’ve answered some of a little bit, but rephrase it. Do we have a structural need? Do we have a problem that needs to be fixed or are we trying to make an issue to be fixed?
David New: Let me say this. When you want to advocate enlarging the size of the Supreme Court, you’re going to do enormous damage to the United States Supreme Court. Even proposing term limits does enormous because you’re basically admitting the court is political. You’re basically admitting that we’re not getting what we want and we know what we want and we don’t care what the Constitution says. We’re going to put the people on there that we want and that’s it. And so that’s why Biden came out against enlarging the number. But Kamala Harris, I think she at one point said something in favorable towards making it a larger number so she can get the kind of people she wants and get the kind of vote she wants. Now, the Supreme Court, do we need to change the Supreme Court? Yes, the 14th Amendment is a good amendment and it needs to stay the way it is. But the way the Supreme Court has taken that one single word, liberty in the due process clause is holy and totally crump. Something needs to be done about that and a court of the Union or a super majority could solve that problem. The Supreme Court is the greatest divider in America. It’s not the Presidents, it’s not the Congress, it’s not Donald Trump. The single greatest divider in this country is the US Supreme Court. Nobody divides us the way they do.
Sam Rohrer: I think
David New: If the United States would follow it, the Supreme Court would follow the unity amendment. There is a unity amendment, how to keep America United. There is a unity amendment and the Bill of Rights, it’s the 10th Amendment. If they would follow that, we wouldn’t be conducting national elections of what the Supreme Court did two years ago. That’s how divided they have made this nation. That’s all I wanted to say.
Sam Rohrer: All right. Well you said enough and you said a lot because I wanted our listeners to be clear because you were saying, we have said clearly that the court, all those things that you just said has been divisive. They have acted off of a properly passed resolution, the 14th Amendment, but they interpreted it as you said, and we’ve spent entire programs before talking about wrongly going back to the definitions again and created circumstances whereas they make them actually become the law. So there is a fundamental problem, but not the structure, not the number. It’s the ideology of the people that are on the bench. And that’s the same kind of problem we have in DC right now with those who, the president who wants to be a dictator or Congress who wants to avoid whatever they want to do. It comes back to how we interpret good bad oath to the Constitution and what they mean by it. Those are my thoughts. Anything to add to that?
David New: Well, I’ll say this, the amendment process is hard and we may want to consider rewriting it. We’ve only amended the US constitution 27 times. Some states like Georgia has had 10 different constitutions, not amendments, 10 different constitutions. Alabama has amended some of their constitutions over 600 times. We need to make it easier. The method we use today where Congress proposes amendments was proposed at the very end of the Constitutional convention by Alexander Hamilton. Originally it was only going to be the states that would propose amendments to the Constitution, but Hamilton came in at the last minute days before the convention ended and said, no, we should let Congress do that as well. We need to make an amendment process be easier. That is another possibility that might bring good change to the Supreme Court, but these people are dividing this country and they’re
Sam Rohrer: Doing a lot of damage in this country. And David, that’s pretty much at the end, ladies and gentlemen, just a couple of thoughts on that. The reason for making changes is that in a representative republic that is and should be done. Remember at the very beginning of this nation, it was William Penn here in Pennsylvania who said, is it possible that we could set up a holy experiment in freedom? And as that one standing, the gap minute we just played in that last break, it all goes there. If the people, and if those in office do not submit themselves willingly to God’s interpretation of moral law, you will not be able to find unity. If they do that holy experiment could become successful and the United States became successful because of that. We won’t solve these constitutional issues quickly, but we can return to God quickly and that is what we must do.
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