A 21st Century Renaissance of Religious Liberty with Kelly Shackelford
Charlie sits down with Kelly Shackelford, Esq., is President and CEO of First Liberty Institute, the largest legal firm in the nation dedicated exclusively to protecting religious freedom for all Americans. Kelly discusses his recent case argued in front of the Supreme Court defending parents' rights to send their children to religious schools that if successful, will empower school choice across the nation. Kelly also explains his case argued before the Federal Court in Ft. Worth in defense of 26 Navy Seals who are threatened with dishonorable discharge, a loss of pension, and other penalties for refusing to get the COVID vaccine on religious exemption grounds—another case that could have national implications for mandates at the federal level. Finally, Charlie and Kelly discuss how even though the nation has trended toward progressivism and secularism, the current makeup of the Supreme Court is poised to deliver more religious freedom to Americans than they have ever had in their lifetimes. Support the show: http://www.charliekirk.com/supportSee omnystudio.com/listener for privacy information.
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Kelly Shackelford on Supreme Court Debate00:01:55
Hey everybody, today on the Charlie Kirk Show, my conversation with Kelly Shackelford.
We go through his debate in front of the Supreme Court that might impact every mom and dad that cares about education.
We also talk about a court case that he is fighting for regarding vaccine mandates in the military.
Very important conversation with my friend Kelly Shackelford from FirstLiberty, firstliberty.org.
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Hey, everybody.
Welcome to this episode of the Charlie Kirk Show.
With us is Kelly Shackelford from First Liberty, FirstLiberty.org.
I get that right.
You got it, man.
We've been doing a lot of partnerships together this year, your Supreme Coup and many other things.
Fighting for School Choice Freedom00:04:56
But you just argued in front of the U.S. Supreme Court.
Is that right?
Yeah, we had an argument last week.
It's a big deal.
Tell us about it.
It's a case out of Maine where for over, if you're in Maine, most of the school districts do not have a public school.
So for over 100 years, they've said, we're just going to let the parents pick any public, any private school, put their kids there, and we'll use the state tuition amount, and they can just carry it to whichever one.
Until a few decades ago, they decided, you know, we're going to change that.
And we're just going to say, you can pick any school you want as long as it's not a religious school.
Wow.
And, well, we said, you can't do that.
You can't create a program where everybody gets treated the same except discriminate against religious.
It's very Orwellian.
Yeah.
And some are more equal than others.
And so my favorite question in the oral argument was about Justice Alito.
He asked the Maine attorney, he said, so CRT school, okay.
White supremacist school, okay.
Wow.
Religious school, not okay.
What was the answer?
The answer is, well, if we had white supremacist schools or CRT schools, I think our legislature would create a new law to take care of this.
But the point is, under this law, the only people that get discriminated against are the parents who want to choose the school that's best for their kids, and it's a religious school.
And I mean, we had clients, farmers, didn't have the money, and they were being robbed of the ability to.
What part of Maine is this?
What?
The whole state.
So you're saying there's no public schools in part of Maine?
Most of the school districts, no public schools.
So what kind of schools do they have?
They just have, you know, private schools that pop up, other schools.
But you can use taxpayer money to go to those schools.
Is that right?
Including you can go to the most exclusive all-girls school, you know, in Portland, Maine or whatever.
And it's $67,000.
And you just take your little, and you can apply there, and it discriminates there on the basis of sex, does all these things that public schools can't do.
But that's fine.
The one thing you can't do is go to the little system.
So I'm just curious.
Maine hasn't had a public school system for a while.
Parts have public school systems.
Yes.
Parts.
Okay.
Maybe around Banger or Portland or Kenny Bunkport.
Half of the school, they're called SAUs, but they're basically school districts.
Have a school.
And so you can go to the public school.
But if you can't, which is a lot of rural areas and these other areas, what do you do?
Well, they've said, well, we'll allow you to take this and go to a voucher, basically.
That's right.
And I'll tell you, I'm like two of the, well, the mom and dad, we had a number of families, but one of them was really sad.
They wanted to pick the Christian school, not even really just because it's Christian, but because the testimony was powerful, I thought.
The father said, you know, he's having to do a snowplow.
He's a farmer just for extra money.
They said, why did you pick this school?
He said, because I know that other local school.
He said, and the education's horrible.
And they said, how do you know that?
He said, because I went there and I'm still suffering from it right now.
Wow.
And I want my child in the Christian school, which is a much better education.
They said, no, we're going to discriminate against you because that school.
And the way they did it is they said, if you taught everything that the public school wanted you to teach, but you added one class on religion, you're out.
And this is all religious schools, basically?
Every one of them.
In Maine.
So what option would there be for these families then?
They would have to choose like a private school that's not religious.
And listen to this.
You could even pick a school outside of Maine.
You can do like a boarding school, like Exeter or whatever.
Absolutely.
And that was my favorite.
Is they said, they said, why are you doing this?
I asked the Maine attorney.
They said, because we want to offer an education that is equivalent to a public school.
And they said, equivalent?
And a number of the good justices asked this question.
They said, so you're saying Exeter, Exeter?
Exeter.
So that same example that I used is equivalent?
Yes.
It's equivalent because there's no religion in it.
So this is the argument.
Yeah, like St. Paul's or, you know, Episcopal outside.
Well, Episcopal would be religious, but not really.
Would be, I guess those are religious.
But yeah, Exeter is secular.
Now, why this is important, though, is people say, okay, it's about Maine.
No, no, no.
It's much bigger.
Yeah.
Because there are school choice programs everywhere.
Arizona, for example.
And what this will mean is, if we win, and I do think we're going to win probably late June, along with the abortion decision, this will be another one of the controversial decisions.
But if we win, it'll mean that from now on, when you have a school choice program, you can't exclude religious schools.
Nervous Moments Before Opening Arguments00:03:47
That's a big deal.
You think about all the areas now where you can't, where there are no choices like that.
They're going to come into existence because people who now, as parents, wanted to pick those types of schools, they'll come together and form those types of schools.
So it'll make a huge difference in a lot of people's lives from here going forward.
So not everyone gets to argue in front of the Supreme Court.
Walk us through what that's like.
So you wake up super early that morning, you've been prepping like crazy.
Just walk us through the kind of game day of arguing in front of the United States Supreme Court.
The most nervous I've ever been in my life was sitting in the lawyer's lounge before the argument because you're not in there yet, right?
So this was not the first time you've argued.
No, and this, I was second in this case.
There was another guy who never argued.
He was, we let him have his first time.
He did a great job.
But 20, I guess 25 years ago is the first time I was there.
And, you know, what you do is there's a lot of briefs filed.
You file, when I say briefs, they're 50 to 60 pages.
Okay.
You file one, the other side files one, then you file a reply, and then about 50 outside groups each file.
Amicus briefs?
Amicus briefs.
They're all in here, and the court's reviewing all these things.
And then you do what's called a moot, a number of them.
Which means mock, right?
Yes.
So like we went to Georgetown.
Law professors pretended they were justices.
We did Harvard.
We did a number of different places so that you're ready for any kind of question that might come your way.
And you polish, you work on it, you work on better answers.
You really get your best ideas.
And then you go into that lawyer's lounge where you're waiting, and then they eventually let you out into the courtroom.
And for me, and I told our guy who was with me this time, Michael Bendis, a good guy with Institute for Justice, I said, this is the most nervous I was where you're standing right now.
I knew he was probably nervous.
And I said, just realize when you get in there, as soon as the argument starts, it'll all go.
Because I noticed within a minute.
Like a minute.
Yeah, exactly.
Yeah, it's not.
When my opponent got up within 30 seconds, I remember thinking, I'm not nervous.
I'm going to destroy this guy.
Yeah, I got a better argument.
And so that's what you think.
So as soon as you get in there, it's fine.
But it is unlike anything else because people think you go in there and like you give a speech and the justices clap or cry or whatever.
No, no, no.
You start and they come at you.
And they're allowed to interrupt at any time.
Is that right?
Yes.
From the beginning.
Do you even get an opening argument?
Well, you didn't used to.
You used to get about 30 seconds most and they would come at you.
They just changed the rules where you now get up to two minutes uninterrupted and then it's free.
The games are off.
That's free.
The rules are off.
So go ahead.
No, but the thing that you don't realize is the justices have had all these briefs and all this stuff and they've all got four of the smartest young attorneys in the country clerking for them.
But they have not talked to each other.
About this case.
The first time they do is when the oral argument occurs, they're talking through you.
So but when do they, so when they're having lunch or whatever, they're not talking about the case?
They throw an argument at you because they're actually trying to speak to other justices.
So are there people in the gallery while you're doing this?
Normally, this last week, because of COVID, no one allowed justices.
And it's not broadcast, though, but it's audio cast.
It was, in fact, if people want to listen to it, we've got the audio where they can listen to the actual argument that occurred at firstlibertylive.com.
We have the argument so they can listen and hear the questions.
And what they'll realize, what a lot of people said to me is, I had no idea how intense and how hostile it was.
I said, yeah, this is not, these are not, you know, friendly questions.
Forcing Students into Strife00:03:28
So walk us through it.
So then, do you, did, so since you're suing the state of Maine, you had the opening argument, is that right?
We open, and then Maine responded to us.
Their solicitor general or whatever, right?
And then the Solicitor General of the United States jumped in to join them.
Biden's DIY lackey.
Yeah.
Yeah.
So while Trump was in office, they filed a brief supporting us.
And then the government switched off.
And they flipped sides in the middle of the litigation.
And so we basically got 35.
We got 30 minutes, left five minutes for rebuttal.
So we went 30.
Then they went 20 and 15.
And then we got our five minutes of rebuttal at the end.
But the thing that was so unusual was the justices can ask questions beyond the time.
And, you know, they might do that some.
Our hour and 10-minute argument ended up being over two hours.
So are you allowed to say who asked questions?
Yeah.
Yeah.
And you can tell, but you can listen back.
So who asked questions?
Every one of them.
All nine.
Every one of them.
Clarence Thomas even asked questions.
Absolutely.
He usually doesn't ask questions.
He made some great points.
One of the arguments that the Biden administration was trying to make is, well, you have a right to the free exercise of your religion, but you don't have a right for the government to provide you money to do it.
But Clarence Thomas probably said, it's not the government's money, though.
Well, and he said, isn't this a compulsory attendance?
So the state is forcing them into a school, and then they're saying, but we're not going to allow you to choose the Christian school.
He said, how is it a subsidy when you're forcing them to do it?
But the facts and circumstances probably played into your hand because of Maine not having other public options.
Is that right?
Somewhat, but I think it had been the same either way.
I mean, I think the idea that if you create a, you don't have to create a program.
Maine, if they wanted to just create public schools and have everybody go to public schools, fine.
But when you create a program that says we're going to let parents choose, you can't at that point start discriminating because really it's no different than, let's say, let's take the college university.
We're going to allow the student groups to use our facilities.
But then as soon as the religious student groups apply, they say no.
Right.
You can't, we've got old cases that say you can't do that.
So then who else asked questions?
You said all nine did, but like the concern.
So Kavanaugh asked good questions.
Kavanaugh was great.
Kavanaugh was really strong.
The chief was really strong.
Really?
Yeah.
One of my two favorites were both by Alito.
Okay.
Him asking them, so the white supremacist school is okay and the CRT school is okay, but not the religious school.
But my other favorite, he said, what if my religion, my religious school, was that what their beliefs were were tolerance and American values like, and he went through these sort of American values.
And the response from the attorney for Maine was, well, that's real close to what the public school teaches, so that would be okay.
Alito responded by saying, what I just described to you was the Unitarian religion, which he had just said, certain religions are in and certain are out, which that's a very bad thing for them.
So I think the way the argument went, it showed, of course, Kagan, Breyer, Sodomayor, the liberals in the court were very much against this.
What were their arguments?
Separation of Church and State00:15:51
I mean, some of them were bizarre.
The argument by Breyer was to me the most unusual.
He kept saying, well, there's all these religions.
If you allow religious schools, it's going to be divisive and strife.
And I wanted to like raise my hand and go, no, what's strife about treating everybody the same?
Yes.
You know, strife is when you discriminate against people, which is what you're doing.
And there's some guy in Augusta, Maine, who's looking at your curriculum and how you're teaching and deciding whether you're really religious or not.
Because there were schools that they said, well, we're not sure.
We see you have a chapel.
They said, yeah, but our chapel, we just really teach, you know, math.
Yeah, we teach issues and things like that.
And they said, well, you're okay.
And then there was another school that had a chapel.
They prayed.
And they said, hey, look, we allow everybody.
We're for diversity.
We're for all these different things.
And they said, well, no, you're, you know, so you've got this bureaucrat sitting in Maine deciding whether you're too religious or not, which is in and of itself problematic.
This could have national ramifications.
It will.
And it'll come down in June and I think have a big impact.
So you wrapped up the argument, but First Liberty, you guys have other cases as well that you've won on.
And you have this Navy SEAL case.
Is that right?
Very important case.
35 Navy SEALs, over 350 years of combat service.
What are they arguing on?
They were told they have to take the vaccine.
Oh, wow.
And they said, we have religious objections.
Plus, we don't put things in our body.
Okay.
What would the virus do to these guys?
Nothing.
Yeah, exactly.
Okay, a lot of them are already immune.
But there is a right under the law, including for people in the military, to ask for religious accommodation.
And that's what they did.
Because they asked, they're now being told they're going to be court-martialed.
Are you serious?
They're told they're going to take their trident away.
They were told that they might have to pay the million dollars for their training when they're thrown out of the military.
This is all bullying.
It's really an ideological purpose.
Of course it is, yes.
And of course, there's like 40,000 people in the military that this is happening to, but these are our best.
These are our elite warriors.
I think there's even more that haven't taken the vaccine though.
Oh, yeah.
So this could impact everybody.
It will set a precedent, I think, because what we're asking for is an injunction against the Department of Defense.
That's a big assistant.
You can't do this.
It is.
But they're violating the law.
There is federal law that says you have to accommodate the religious beliefs of your employees, including in the military.
And if we ever get to a point where the military thinks it doesn't have to follow the laws, we're in trouble.
So this is really important.
If they want to follow the law and see if they can accommodate, but they're just flaunting it.
They've acknowledged that they have granted no exemptions over the past few years for religious accommodation, despite the fact the law requires it.
It's really just kind of an arrogance and an abusiveness that they think they can get away with.
So where does this one stand?
We filed in federal court.
We're in federal court in Fort Worth.
We'll be before a federal judge next Monday, the 20th of December.
We're going to ask for an injunction.
I hope we'll get a decision by the end of the year.
And I hope that by the end of the year, we will have an injunction against the Department of Defense that not only protects these 35 CEOs, these, I mean, think of the idea of throwing these guys out of the military.
These are our best.
Over what?
I mean, over something that won't affect them that most of them have already had.
And just because they ask a religious question.
Meanwhile, they're the ones that are dodging bullets and like holding their breath for six months.
Yes.
Some of them have PTSD.
Yes.
They have all kinds of issues that they've suffered for us.
So, but not only will this, if we get the injunction, not only will it do a great thing for them, the 35 of them, but it will really impact all these other people who are right now being bullied.
They're being told they're going to be dishonorably discharged.
They've been told they're going to lose their pension.
Like example, our lawyer on staff, top military lawyer in the country, Mike Berry.
Mike has been told, he's in three years, his pension best.
He is still in the reserves.
He was a Marine, still is a Marine.
He's a Marine and still serves in reserve.
They're going to take away his pension.
They're going to kick him out.
They're going to do all this stuff.
Why?
He's had it.
Wow.
He's immune.
The guy's the healthiest guy you've ever seen.
His doctor told him, do not take the vaccine in light of your scenario.
And yet that's the kind of guy you can see the kind of bullying that's happening to, I mean, 40,000 people in our military right now.
This will affect all of them.
So what other cases are you guys working through?
Probably one of the biggest ones that's sitting at the Supreme Court right now or waiting to decide if they take or not is the Coach Kennedy case.
Is that the one from Washington?
Yeah, Washington.
Is that the one who prayed that Neil that 50-yard line or something?
That's right.
He was a Marine for 20 years, saw this movie, Facing the Giants, before he went to work, which is about Christians and coaching.
And it just convicted him that after every game, I'm going to go to the center of the field by myself, say a 20-second silent prayer, and just thank God for the privilege of coaching these young men.
And that's what he did for seven years until they came to him and said, if you go to a knee again, we're going to fire you.
And he's a Marine, and he's like, what kind of example am I going to be for these kids?
So he went to a knee.
Wow.
And they fired him.
And unfortunately for him, he lives in the Ninth Circuit, which is out of San Francisco.
And they said coaches are not allowed to pray in public if anybody can see them.
And so we went to the Supreme Court.
Supreme Court, it was really interesting.
They didn't take it.
They said, send it back down.
There's some more facts we want to develop.
But the four conservatives at the time, this is before Amy Coney Barrett, wrote a very unusual statement.
Usually you don't respond to what's called a CERT request.
They said, we find this very disturbing.
And they kind of flagged it, saying when this comes back up, we were going to watch this.
It went back down, back up.
The Ninth Circuit made it worse.
Not only did they say, yes, we're not going to allow coaches to pray in public, but the guy who wrote the majority opinion for the liberals, and by the way, there were 11 dissents.
So we had a lot of judges on our side.
He ended the opinion by saying that his religion, the judge's religion, was that you shouldn't pray in public.
And then he castigated Coach Kennedy for doing so.
I'm like, now, what is that?
That's bizarre.
Since when does a federal judge say, you don't have my religion, and so I'm going to discriminate against you?
Did he really say that?
He did.
So his religion was not a religion or something?
His, yeah, that Coach Kennedy was doing wrong.
The two things that I thought were so incredible that were added to already what was going on was that, was that, well, you really should pray in public if you're a religious person and then trying to put his religious beliefs on Coach Kennedy.
But the other was they said that Coach Kennedy was, quote, pugilistic, meaning a fighter, that somehow it's inappropriate when you're fired to bring a lawsuit because that shows you're kind of a troublemaker.
Oh, that's the ninth.
That's the Ninth Circuit's argument.
So I'm sure our founders are so enlightened that if you actually assert your constitutional right Luther King, you should somehow have them taken away if you assert that.
That's the ninth argument.
Anyone who files lawsuits doesn't deserve a fair hearing.
And so update now, we filed our brief in the Supreme Court asking them to take it.
So Gorsuch Alito, Kavanaugh, Barrett, Thomas, they're keeping an eye on it.
And all they need is four, right?
They take it.
The other side, the school district, has now hired outside counsel.
Guess who they've hired?
Perkins Cooey.
No.
The Americans United for Separation of Church and State, a left-wing atheist organization to represent the school district against Coach Kennedy.
Wow.
And so this is becoming quite an interesting.
But let's walk through this, Kelly.
So nowhere in our Constitution does it say separation of church and state.
Nope.
Nope.
It was a single letter that Thomas Jefferson wrote in 1803 to the Danbury Baptist Convention.
Yes.
And that's even taken out of context.
But this idea of separation, church, and state first really started to come in either the Warren Court or the Burger Court.
That's right.
That's right.
Talk a little bit about the case called the Lemon case that really sort of put this in into the law.
What the Constitution says is Congress, this is the First Amendment.
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
We didn't want there to be an established national church like in England.
And so that's why they put that in there.
But in 1971, the Warren Court said, oh, no, no, no.
It means more than that.
Separation of church and state.
It means separation of church and state.
So for the last time they quoted that from Jefferson.
Yes.
Who didn't even write the U.S. Constitution.
Right.
He was out of the country when they were writing the First Amendment.
Enjoying wine and doing all sorts of things.
So it was just something they threw out there, but it became what they used to really create a hostility to religion by the government.
So our whole lives, we've seen attacks on nativity scenes that have a menorah before Hanukkah, A Ten Commandments monument, a religious symbol.
Why?
Because the founders would have had any problem with those things?
No.
Because they had abused the establishment clause and created this hostility to religion.
So what we did two years ago is we had that Bladensburg cross case.
Yeah, that was a big one.
And this is a cross that was put up 100 years ago by mothers who lost their sons in World War I and the American Legion.
And they said at the Court of Appeals, Federal Court of Appeals, two Obama judges said unconstitutional after 100 years.
To have the cross at the National Cemetery?
No, it was outside of D.C. in Bladensburg, Maryland.
Was it federal property or something?
It was originally American Legion property, but because they built roads around it, the state of Maryland took over the land just for safety.
And then they said we have to tear it down.
And they're like, we don't tear down veterans' memorials.
I mean, if we're going to do this, we're going to have to go in the tomb of the unknown soldiers and erase known but to God off the tomb.
We're going to have to take down all kinds of crosses.
Oh, the atheists will do that next.
They would.
And so we said, this is not right.
So we went to the Supreme Court.
And by now, we were at the Supreme Court.
We looked.
Kavanaugh was there.
Gorsuch was there.
We said, you know, we might have five votes to get rid of this old Lemon case.
And so we argued, you know, not only preserve the memorial, it's time to get rid of Lemon, this hostility to religion.
So where does that stand?
We won.
You got rid of Lemon?
We won the case 7-2.
5-4, the justices said we're not following Lemon, which was huge.
So for 50 years, we've gone in this hostility.
So when was all this?
That was two years ago, two years ago, June.
So it has, so is Lemon now in question?
All the lower courts say, quote, Lemon is dead because of this opinion.
And it's changing all the presumptions in the lower court decisions.
I'm seeing a theme here, which is the court reconsidering Roe versus Wade, court reconsidering Lemon.
There were some super radical decisions made by a bunch of postmodern, secular, progressive, John Dewey types in the 60s and 70s that are now getting a fresh constitutional look.
Is that right?
That's right.
The way I put it is, it's kind of like the Continental Divide.
It was raining on this side.
It just changed, and it's now raining on the other side.
Yes.
That might not look very big, but that water is going to a very different place.
Wow.
When you put originalists in there, and look, you might disagree with a lot of their opinions, but this is the first time in 80 years we've had a majority of justices who think their job is to look to the original meaning of the text.
Yes.
The Constitution, the statute.
It's not what we feel is best.
It's not the evolving Constitution.
It's what is the original meaning?
The Anthony Kennedy thing.
Yes.
What is the original meaning?
Well, there is no Roe v. Wade in the Constitution.
There's nothing about abortion in the Constitution.
There is nothing about separation of church and state and this hostility to religion approach.
So they're going away from what people feel or what they said about what they feel to what does the Constitution say?
And this is because of political victories.
Let's make no mistake, right?
I know that you're a C3.
We're a C3, but also just looking at it as it is, not taking a position, if it wasn't for the surprise election of Donald Trump.
No doubt.
There's no way you could connect those two together.
He's the first candidate who has ever run for office on the issue of judges.
Yes.
And did so successfully and fulfilled them.
Totally.
He said, this is what I'm going to do.
I'm going to appoint these kind of.
I was at the meeting, a thousand evangelical and other leaders in New York meeting Donald Trump, and six of us got to ask questions.
I asked the question about judges.
I said, you say you're going to put people like Thomas and Scalia on the court, but there's hundreds of these.
How are you going to know?
How are you going to make sure and do that?
And he said, I'm going to listen to groups like yours, the Federal Society.
Leo did a great job.
Heritage, and I'm going to put, and he did it.
He put originalists, not politicians, not people who were conservative politically or whatever.
People who said, you know, that's not my job.
My job is not to be a politician.
My job is to follow what is the original meaning of the text.
And that's a huge difference between conservatives and liberals.
Liberals want to use the court for their political.
As a means to the end, yes.
Whereas conservatives, like a Justice Thomas, will say, as he did, I don't understand this anti-homosexual law.
But you know what?
My job is not to say what the public policy is.
My job is to look at the Constitution.
That's what you want: judges who won't push their politics.
They will just say, here's what the text says.
Here's what it means.
What's so interesting, Kelly, is that as the country was probably more conservative in the 60s or 70s, the court was more liberal.
And now, as the country has become a little bit more liberal or left-wing, and I think that's undeniable versus the culture of the 60s and 70s, the court has become more conservative.
Why is that?
Well, I mean, I think for a long time, the conservatives didn't pay attention to the court.
I think that's right.
And for years of my life, the Republican approach was pick somebody without a track record so they won't see how conservative they really are.
Bork kind of freaked a lot of people out, right?
Because Bork, first time he had the televised hearings of it, I think that it was Reagan that appointed Bork, right?
Is I'm not mistaken?
Yes.
I think he preemptively pulled his nomination, even though the Senate screwed up on it.
Can you talk a little bit about that?
Because Bork was a really, he was a Scalia-type scholar, wasn't he?
Yeah.
Brilliant guy, but very intellectual and looked a little creepy because he had the weird Jack Welch look, right?
Yeah, but he had facial hair going from the top all the way around.
He had this whole kind of, you know, it surprised people because it's the first time.
It was televised.
And it's the first time we ever politicized it.
Thank you, Ted Kennedy.
Yeah.
Yeah.
The judiciary.
Because what we had done before is, whether you're Democrat or Republican, you just looked at, is the person bright?
Do they have a judicial temperament where they'll be fair?
And then you just said, I know we have different philosophy.
Picking Judges with Right Philosophy00:02:00
We'll let your guy through as long as they're not crazy.
This is the first time.
But Scalia was almost unanimous through the Senate.
Yeah.
And then you had Bork, and then you had Thomas.
And we won on Thomas.
They lost on Bork.
And it was horrible what they did to Thomas.
It was all lies still to this day.
And the whole thing was so.
I just want to say something.
We have a lot of younger listeners that aren't.
I encourage all of you to research and watch the documentary on Clarence Thomas.
If you want to talk about cancel culture, Me Too, before, I'm very critical of George H.W. Bush, but he deserves credit for standing by Clarence Thomas.
Absolutely.
He could have pulled that nomination.
And it was very similar.
It was like a replay to watch Kavanaugh.
Yeah, it really was.
Cabino, I think, was even more unfair.
But that's that, I mean.
And so that's what changed there.
That's what changed.
And so as a result of that, though, with Bork, the Republicans' lesson that they learned was pick people that don't have a really clear record that we know are conservative.
Like the link in the nod.
Yeah.
Souter.
Yep.
Didn't turn out to be so familiar.
Right.
And so Alito was the change of that.
Yeah.
Bush.
Roberts was before Alito, if I'm not mistaken.
Yes.
And then Bush picked Harriet Myers, his friend, and people pushed back.
And they said, no, we want people with a strong judicial record.
So he gave up on her and he put, okay, I'll put Alito, who had one of the most extensive conservative records.
Who's been phenomenal, by the way.
And he got through.
And they went, oh, my gosh, we can actually pick somebody with the right philosophy.
And that's what really changed things at that point.
Then Obama put Sodomayor and Kagan.
Yes.
Right.
And he only, but then he wanted Merrick Garland, who's now on a revenge campaign against the American people.
And to McConnell's credit, he said, let's wait for the American people to speak.
And then we got Gorsuch, we got Kavanaugh and Amy Coney Barrett, which they never would have expected.
Three in one term.
That was a lot.
No, that was a God thing.
It was a rebalancing, like, I'm going to give you another shot type thing almost.
Religious Freedom Crisis in Mississippi00:10:40
And so coming back to your whole point, you know, take my area of religious freedom.
I believe this really, and I've been saying this in speeches around the country.
Every American is about to have more religious freedom than they've ever had in their lifetime.
It's amazing.
And it's simply because the justices are going back to the words in the Constitution.
And the founders built this country on religious freedom.
So that in this time of darkness and attack on religion and attack on basic principles of right and wrong, it's so odd that at the same time, it's going to be a time of some of the greatest religious freedom we've seen.
And it's just the, and I do want to give credit, the conservative movement did do a good job of holding the line and focusing on judges.
Not the only thing, but it's very important.
Let me ask you about Roe versus Wade as much as you can comment on this.
Sure.
So Roe v. Wade, a reckless, unconstitutional, corrupt, I think, drive-by shooting of the Constitution that happened, which set a precedent that abortion is legal, but it was never passed by Congress.
It was never voted on by the people.
Talk a little bit about that, kind of the unconstitutional nature of it, and what exactly is being now discussed in the Dobbs v. Mississippi.
Is that right, Dobbs v. Mississippi?
That's right.
I think that's going to be a case that's as well known as Planned Parenthood v. Casey.
So, because that's the second chapter of Roe versus what happened with Roe is really a misuse of our system.
The way our system is supposed to work is that legislative or public policy issues are decided by the people through their representatives, the Congress, your state legislature, your federal legislature, your local officials.
They decide the moral questions that the Constitution doesn't address.
And if you don't like it, you throw them out of office and you change the law.
But what happened in Roe is five justices essentially, or six, decided what our public policy was in a backroom.
That's not how.
This is super corrupt.
It's not, everybody knows who's honest.
Read the Constitution.
There's nothing in there about abortion.
Okay.
As a result, that's an issue for the people to battle out.
And so they took this out of the hands of the people.
And they shouldn't do that.
That's not the job of justices.
That is now coming to a head, I think.
Well, it did in Planned Parenthood v. Casey, right?
And then our friend Kennedy wrote the most bizarre opinion about the imaginative clause or something.
The mystery of life.
Who knows what life really is?
It's defying your own existence.
Can you talk a little bit about that?
It was one of the most bizarre.
It was this, I'm going to go be like kind of this Eastern Buddhist philosopher, if I'm not mistaken, right?
It wasn't about the Constitution.
It was, you know, he got.
I would like to say that you're not going to be able to do it.
He got to the ledge and he walked back.
Yes, he really did.
Right.
And he did the typical Kennedy style, though.
Because this was the Catholic conservative guy that's supposed to be really, really.
Who was confirmed like 92-0 or something or 97-0.
And so that's why having 6-3 now is so important.
When you're 5'4, somebody starts to lose their courage.
But when it's 6'3, it's a lot harder.
So the Dobbs case, and if people don't know what the Dobbs case is about, the Roe case just out of whole cloth, just out of nowhere, created a trimester system under the law for when the government could do.
Before the technology was even that good, by the way.
Yeah.
I mean, before we could even see the baby in the womb, basically.
And this case out of Mississippi says, no, no, you can't touch, you know, you can't touch the baby way earlier than that.
And so it was really a challenge to Roe.
And most experts who have been following this case say, really, if you uphold the law in Mississippi, you overturn Roe.
I mean, just you can't.
It doesn't mean it outlaws abortion, though.
No, but you overturn Roe.
And so most people think it's one of two things that's going to happen here.
Either the justices are going to overturn Roe, but do it in a more soft way, right?
They'll say, we're upholding the law.
Here's our new standard.
Okay.
Or they're going to say, Roe v. Wade is overturned.
And that is the question.
But what does that mean?
That means just have that.
It means it's now back to the states if they do that.
It's now every state passes whatever law they want to pass on that.
I think it's going to happen.
Do you think that's the most plausible or likely I think after the argument, what happens is, by the way, we didn't talk about this earlier.
You have an argument on Wednesday, just like our argument was last Wednesday.
Friday, they go into a room by themselves, the justices, and they.
No clerks.
No clerks.
Nine of them vote.
Whoever the majority is starts writing their opinion.
Whoever the descendant is.
And then they share those things back and forth over the next month to convince people to change their vote.
But they can change their vote, right?
And all the way until probably the end of June, we'll get a decision.
If you forced them to write a decision the day after the argument, I think it would have been five justices saying Roe v. Wade is overturned.
Chief Justice Roberts saying, let's do it more subtly.
Yeah.
And then the three saying abortion is abortion is great, right?
But the question is, will Roberts, who's a very politically savvy guy, be able to convince somebody between now and June to join his more moderate way to do this?
You mean pick off like Kavanaugh or Barrett or somebody?
And I think that's his only chance.
They get the three on the other side.
Yeah, but I think it's going to be, I just can't see them not.
Well, I don't think those three are not going to budge either.
I think those three are going to move.
I think it's going to be three, three, and then the other three, where do they go?
Kavanaugh, Barrett.
Thomas isn't moving.
No, Thomas isn't moving.
Alito is not moving.
Gorsuch is not moving.
And so the question is, right now, there's Barrett and Kavanaugh, I think, are with them.
I think you're right.
And can Roberts pick one off and you end up with this sort of 3-3-3 decision or four?
So what you're really articulating, Kelly, is the unknown of Amy Coney Barrett.
Yeah, and Kavanaugh.
I mean, I think you know a lot about Kavanaugh, for instance, on religious freedom.
Same with Gorsuch.
But when it comes to this, this is new.
You haven't seen a lot of opinions here.
But I think if you watched what was going on in the argument, Kavanaugh and Barrett are really strong.
And if you'll remember, Kavanaugh made the point in the argument to say, hey, look, if we overrule Roe, all we're doing is being neutral by letting everybody else decide.
Boy, is that a move of the Overton window, though?
That's a big, I mean, that's a strong situation.
To say that out loud as a Supreme Court justice, I mean, all of a sudden you have the National, you had Nate Rawl and Planned Parenthood and the reproductive.
They said, how have we lost this over the last 50 years?
You know what I mean?
For one Supreme Court justice to say that is a big deal, let alone that to become a majority.
That goes to show the work you're doing, Kelly, and the conservative legal work has been one of the untold successes, I think, of the last 30 years.
I really believe that.
It hasn't obviously been enough, but without it, I don't know where we'd be.
I would say what's really fun for me, I've been doing this for 32 years, and religious freedom, we're just at the beginning of a new renaissance, right?
Yeah.
I mean, it's so exciting.
But I will say this behind all of this, part of the reason this is all happening is because younger people are more pro-life.
Yes, I agree with that.
I mean, we were losing the battle back in 1973 with Roe v. Wade.
But what's happened is politically, I totally agree.
We're a pro-life country now.
So look at the Yunkin race where they ran a ton of ads against him for being pro-life.
No one cared.
Most people didn't care.
And those who did were pro-life.
That's right.
So it's not, I think when that politics is underneath, it makes it easier for you.
Yeah, Hamilton predicted this, that the judges are human beings.
Yes.
And they are going to go the way of pressure.
And you saw that in the gay marriage thing.
Yes.
That 90% of the country was not upset with the gay marriage decision.
Now, they should have been considering what it did with the state's rights component of it, but they use the same playbook from Roe.
FirstLiberty.org, is that right?
FirstLiberty.org.
How could people help you?
What else do you have coming up?
You're doing such amazing work, Kelly.
I can talk to you all day long.
That was a lot of fun.
We have endless cases, so we can go on.
The best thing they can do is just get the weekly update.
That could be one of our insider updates.
So firstliberty.org.org, and they can sign up there.
And that way, when the SEALs case comes down, they can tell other people, because most people don't know about all these victories we're doing.
So let's say right now we have a lot of people listening.
Let's say that they are a Marine or they're working in the Army.
That SEALs case could impact them.
It's huge.
It's huge.
And let's say they know somebody about to lose their job because of the vaccine mail.
We have plenty of listeners.
Well, you go to our website at firstliberty.org.
There's a kit that lays out, here's what the law is, whatever your situation.
Here's an example exemption form.
90% of the people that just follow that, they get exempt.
They keep their job, their career is safe.
But a lot of people just don't know.
So maybe the person watching this isn't that person, but I bet they know somebody.
So just First Liberty has all those kinds of resources for people to let them know what their rights are because people aren't bold when they don't know their rights and they don't know we're winning.
But when they see that, and that's why I would tell your folks, be the Paul or Paula Revere to like encourage other people to be bold, to speak out, to stand for our freedoms.
Our cases will, I think, help people do that.
Do a great job.
Firstliberty.org.
Thanks, Kelly.
Thank you.
Appreciate it.
Thanks so much for listening, everybody.
Email us your thoughts.
Freedom at charliekirk.com.
See you at AmericaFest and Fest.com.
God bless you guys.
See you soon.
For more on many of these stories and news you can trust, go to CharlieKirk.com.