MM#137--Saving Nine--Liberty in the Balance

Welcome to the theory to action podcast, where we examine the timeless treasures of wisdom from the great books in less time to help you take action immediately, and ultimately to create and lead a flourishing life. Now, here's your host, David Kaiser.


Hello, I'm David and welcome back to another Mojo minute. In the lead up to our nation's birthday on July Fourth, we're going to cover some history this week, namely history where Liberty was in the balance, meaning we Americans could lose a great deal of liberty. Now, as a graduate in political science from college, I took many classes working in in through the law, especially constitutional law one and two, which I remember fondly and I was on our university's mock trial team. But it wasn't until I went to Washington DC in 1996, and had the great opportunity because of friends who got me up in the wee hours of the morning, to go stand in line at the Supreme Court to be one of the first 100 or so folks to get a seat during the courts. oral argument that spring that I became, really to cherish that institution. 

That day, I still remember walking up the steps to that hallowed Hall, the quiet of the room, the ornate insides, the grantor of the place. And I thought this is the Supreme Court. This is the third coequal branch of government with the executive and the legislative branches. And then looking around my eyes rested upon those nine unoccupied chairs. The chairs of the Supreme Court justices. Just then it was 10 o'clock. And the Supreme Court Martial as Tradition has it comes out and greets the room with his shouting decorrelation oil a all persons having business before the honorable the Supreme Court of the United States are admonished to draw near and give their attention for the court is now sitting God save the United States and this honorable court and have quote Oh, my What a grand opening. I thought this is our government in action. This is the Supreme Court in action. And just then all nine of the Supreme Court justices and their black robes appearing from behind the rose red curtain behind their chairs gracefully slid into those chairs to get comfortable for the next hour. And with a bang of the gavel. 

From then Chief Justice William Rehnquist, the court was in session, the experience was exhilarating, and I was enthralled over the next 20 years of my life. I would study everything I could on the Supreme Court. The reverence it was due and our American history had given it was to me like a secular church in a way. And recently I just finished a book that captures all that majesty and reverence and history of the court. And that book is titled saving nine by Utah Senator Mike Lee, who in fact, Mike's dad was the US solicitor in General under President Ronald Reagan. And the subtitle caught my eye and was the reason for my reading it. Subtitle was the fight against the left's audacious plan to pack the Supreme Court in destroy American liberty. So because the world in the country, in fact, has gone nuts in the last three years, some very bad ideas have gained momentum in recent years. And one of them is packing the Supreme Court with more justices. 

Now, if you remember from your civics or government class back in high school, this was attempted by a previous President Franklin D. Roosevelt. And that plan then was extremely, extremely unpopular. And that plan today is equally extremely unpopular. But that is where we find ourselves in our country. The number of days justices has been set at the number nine since the end of the Civil War. Indeed, the Constitution says nothing about a firm number of justices only that Congress can, in fact, does have the power to change that number.
To remind ourselves of what happened with the first court packing scheme for President Roosevelt in the 1930s. Let's crack open our history books to 1936. And remember that Franklin Roosevelt won reelection in November 523 electoral votes to eight. It was a sweeping victory, after which the President wanting to gain even more power, sent legislation proposing for every justice that did not retire by age 70, the president would have the ability to add to and appoint a new justice, thus increasing the number of justices beyond nine if in fact, no other justices retired. 

Now, prior to 1936, Roosevelt's New New Deal legislation at the time, across a variety of fronts had been declared unconstitutional repeatedly. And the President was certainly getting frustrated with the Supreme Court. Ultimately, what came to be known as the quote switch and nine, switch and time that saved nine is when Justice Owen Roberts switched his decision, where he almost always sided with conservative justice in this particular part of the law to the liberal wing of the court in a specific case, called West Coast Hotel Company, versus parish, which was a case regarding the minimum wage law wage law at the time. Now, you can be sure to check out the senators book for the details on how this whole episode owed this whole episode unfolded. And it's, it's actually quite fascinating. Though I did want to share senators Lee, Senator Lee's conclusion about the whole matter because it gets to the core of what we're going through today. And especially what we're going through with people calling the Supreme Court illegitimate now, in the wake of the Roe v. Wade, being overturned by Dobbs. 

Quote, one could credibly argue that what stopped FDR is plan to pack the court was a single man who decided to change his vote in a single case. And this part should scare you for reasons that were by all accounts entirely political, not judicial. But I can't bring myself to praise justice oh and Roberts decision. If in fact, Roberts changed his vote to achieve any political outcome, then doing so was a shameful betrayal of his judicial oath, regardless of whatever good he may have been trying to accomplish. His job was to decide cases, according to the law and the facts of each case not to achieve whatever he regarded as in the best interest of the court and its members. In all fairness, we do not know what would have happened if justice Owen Roberts had reached different conclusions during those pivotal deliberations in the spring of 1937. It's easy to speculate that had Justice Roberts stuck with the four horsemen, the Supreme Court as we know it, would no longer exist. Maybe it would exist. But it would be several times its current size. Roosevelt's initial round of packing could have kicked off a ratchet effect. With Republicans adding more justices the next time they gain power. The court would thereby experience an increase in its total membership, with every partisan shift in Congress. Rarely, if ever to see a corresponding decrease. Given once someone is confirmed to the seat on the Supreme Court that seat cannot be eliminated. unless or until that person holding it dies, retires or is removed from office and of quote. And this is the great concern, the ratchet effect. Once one party gains presidential power, they simply increase the number of justices to whatever number they need to ram their political programs through thereby denying any check On the federal judiciary of the executive branch. Ultimately, Roosevelt's bill would die in the Senate Judiciary Committee.
And that committee at time made up of a majority of the members from Roosevelt's own party, who would go on to write a devastating critique of the President's plan. Let me go back to the book.

It remains one of the most important documents that the committee has ever produced. And it the senators concluded that the bill amounted to an invasion of judicial power such as has never been attempted, in a dangerous abandonment of constitutional principle. And conclusion, they wrote that the bill, quote, should be so emphatically rejected, that it's parallel will never again be presented to the free representatives of the free people of America. And of quote, dang, that is such a blistering critique. That one would think that that would be the end of it. But here we are, again, with this dangerous court packing idea for political purposes coming back, elected representatives, shouting that the court is illegitimate because they disagreed with a rolling. So be sure to check out senators Lee book for more details where he goes into the Supreme Court on why the Supreme Court is the greatest tribunal in the world. And he goes into who's behind this very, very bad idea to pack the court. 

Both of those chapters were very, very good in the book. In fact, the whole book is very good. It's a it's an excellent short history of the court and why Americans should be extremely proud of this great cause, this great institution. So you might be asking, Well, what is it stake? So what if the court gets packed just increases the number and for every presidential shift in power, they just expand the court with that number of justices. It's no big deal that some have suggested. Let's go back to the book. 

Quote, let me explain what's at stake. I've already said that President Biden and congressional Democrats have no shortage of bad ideas for this for this country. In just one year, they have introduced draconian measures that would have drastically expanded the control that the federal government has over the lives of American citizens. But when it comes to their outrageous attempts to pack the Supreme Court, they are attacking more than just our individual liberties. They are attacking more than the institution of the Supreme Court. What they are really attacking is the structure of the Constitution itself, which sets up an enormously complex and balanced system of the government. The judicial branch, in particular has carved out a niche for itself, over the years building centuries of precedent to arrive at a perfectly balanced system for resolving disputes regarding what is and is not constitutional. It is a structure that has never been thoroughly replicated anywhere else in the world, and perhaps never will be. Let me stop here. And repeat that last sentence. It is a structure that has never been thoroughly replicated anywhere else in the world, and perhaps never will be. Think about that. 

Let's go back to the book. And when it comes to the American system of government, as Justice as Justice Antonin Scalia once put it, quote, structure is everything. Now we can talk about all the rights all day long, we can complain about how different administration's of both major political parties violate them. And we can work together to make sure that those violations cease with Congress, the presidency, and the courts playing a vital role and the ultimate backstop residing with voters. But in truth, the protections enumerated in the Bill of Rights we all enjoy as Americans were something of an afterthought. They weren't tacked on to the cost institution until two years after the original document without amendments had been written and ratified. What mattered to our founders was setting up a system of government that would last for centuries, one with parts that work together and an endless sequence of checks and balances, and sharing that power never would become centralized in one person, party or baby. For centuries, that system has unleashed the greatest wave of human flourishing, ever recorded by historians and of quote. 

So in today's Mojo minute, with liberty in the balance, and with people calling for this Supreme Court, to be impeached to be overruled, to be threatened, which is despicable. Calling this court illegitimate, which is most regrettable, elected officials doing this, which is disgusting. Let us pray that this madness stop now that Americans have stood up before to stop extremely bad ideas. And we can do it again, to preserve our great Republic. Certainly not all of us have ever agreed with every Supreme Court decision. And in fact, 50 years ago, we didn't agree with an outrageous decision that Jessica overturned on Friday. And the way you disagree with a Supreme Court decision, is you peacefully protest, you are not violent. And you convince other Americans to change the law, and you do this in your states. That's the way the country works. That's how you shape law. You convince other Americans and especially those elected representatives across 50 states to change that law. So let us today, let us pray that this man has stopped now for calling the Supreme Court illegitimate. And let us stand up to stop these bad ideas. And let us ultimately conclude with the senators own words from the book, quote, our institutions and our constitution face an existential existential threat. But it's not too late to stop it. And it's not too late to save nine.

Thank you for joining us. We hope you enjoyed this theory to action podcast. Be sure to check out our show page at T Mojo academy.com where we have everything we discussed in this podcast as well as other great resources. Until next time, keep getting your mojo on