MARK LEVIN (HOST) As the gaggle of legal analysts go on cable TV and sit at their computers and write there their blogs, you don't have to be a legal scholar to figure out what's taking place in this country right now. An order was issued 40 minutes after the last brief was filed by the United States Supreme Court. In other words, it had already made up its mind in the case of Pennsylvania. We talked about at length as we have these other cases, but Pennsylvania in particular. It said "the application for injunctive relief presented to Justice Alito and by him referred to the court is denied."
That's it. Now, why did they do that?
And so this will be the speculation that starts today and goes on for the rest of time. Now, I'm going to tell you why I think this took place. This was a open and shut case. This was a black letter law case.
But I think the Supreme Court justices now, I think they're very fearful. I think they're fearful the way Justice Owen Roberts became fearful after FDR tried to pack the Supreme Court. And then the Supreme Court would issue rulings five to four. five to four, five to four over and over again with Owen Roberts switching in support of FDR's programs; before that, they were knocking them down because FDR threatened to pack the court. He wanted to add six seats, six.
This court knows full well [coughs] -- excuse me -- this court knows full well that if Joe Biden's president and if the Democrats win two seats in Georgia, that there's really no way to stop the Democrats from actually packing the court, FDR couldn't do it, but they could. And I think this is a constant in their thinking. That these justices sat in their conference room and had a long talk, not so much about the law and the Constitution but about politics and the political ramification of what would happen to their institution, which is now being threatened, and I think they made a terrible decision and I think history will judge it that way.
It's not a matter of them getting involved in politics. They're always involved in politics. What will happen now is any state Supreme Court and any state legislature can change election laws lawlessly, whether they violate their own constitution or whether they violate Article Two of the Constitution and they know the United States Supreme Court will do nothing. Nothing.
And so this will create further chaos and further division in this country. Because they made, in my view, a fundamentally and historically devastating decision to duck. Now, that doesn't mean the petitioners can't file for a writ of certiorari. Remember, this was up on an emergency appeal for an injunction. It doesn't mean the petitioners can't file for a writ of certiorari for the entire case to be heard. I don't know what they're going to do. But I suspect it's likely the same result.
But these justices are fearful. They're scared. Some of them are ideological. We know the Democrats on the court stand strongly for their activism. We know that Roberts has flipped. But apparently the other five, "We're not going to get involved, you see, because the likelihood of changing the results of the election and then will be accused of interfering and you can imagine the editorial pages across the country in the commentary and the legal analysts." They read it all. They watch it all. They hear it all.
And they know that this would be used against them. So rather than stand up and put an end to the chaos -- You know, early on what this court could have done under John Roberts is two simple comments. Number one: The states must comply with Article Two of the Constitution -- meaning state Supreme Courts, state governors, state election boards, state secretaries of state are free to change election laws that are used, at least in part, to select electors, period. Period. And then the court could have easily said that when a state supreme court or a state legislature fails to comply, of course, it's a federal question, we will address it. So follow Article Two and in doing so, comply with the state and federal constitutions, that's all this court had to do. It could have done it five weeks ago. It had a case presented to it and it didn't do it.
The commonwealth judge is the hero in this entire matter; the appellate court in Pennsylvania got it right, because that judge was not driven by politics. She was not driven by a result-oriented decision. She was fearless in her defense of the rule of law.
So what the U.S. Supreme Court has done, lawyers will tell you no, but effectively what it has done, is it's given a rubber stamp to what the state Supreme Court did and to what the legislature did when it violated the Constitution in October 2019 and that has an important reason, 2019, because it was prior to the presidential election. They didn't know in 2018, they didn't do in 2017. 2019.
So state legislatures are effectively free to do whatever they want, but the most powerful force in the selection now of our electors are the state supreme courts. They can rewrite the laws. They can defy the federal constitution. Whereas Justice Rehnquist and that court put the Florida court in a box and said, no, you don't get to do this. Chief Justice Roberts and his court said, oh, yes, you do.
Many people are very excited about the case brought by the state of Texas, which is being joined by other states, I understand Louisiana, perhaps Florida, and they're suing other states like Pennsylvania and Georgia.
What makes you think that just because the US Supreme Court is taking that case that the result will be a just result. They just had an opportunity -- just had an opportunity -- to address a black letter law case, as we call it.
You had some legal analysts like at National Review. They were hanging on laches, which was preposterous from day one. You have other legal analysts who are trying to figure out what's Alito up to?
In the end. In the end, all the filings, all the briefing, all the deadlines were meaningless, pointless, I'm not even clear why Alito did what he did, to be perfectly honest with you.
I don't know why he did what he did. I don't know why he needed briefing, particularly if they're going to issue this order 40 minutes after the last brief was filed; that means they'd already made up their mind, they weren't going to get involved. This Supreme Court will get involved in a whole lot of stuff. It'll rewrite laws like it did the Obamacare law.
That when it comes to the biggest of federal questions, the selection of a president or vice president, the obvious violations of Article Two by the Pennsylvania Supreme Court. The obvious violations by the state legislature of the Pennsylvania Constitution and its effect on the choosing of electors.
If it's not going to take that case and do justice for the American people, I don't see it taking any other. I could be wrong. I hope I am.
Please understand. All this court had to do early on, say, follow Article Two, all states must follow Article Two. And they must comply with all constitutions, state and federal. In the following article, that's all it had to say.
I think they're scared to death. I think they're very worried about what's going to happen. I think they think we're going to lose Georgia. I think they think Biden will be sworn in. And I think they think that any step they take to enforce the federal Constitution against a lawless Democrat Party, lawless state supreme courts, and so forth, acting on behalf of the Biden campaign, acting on behalf of the Democrat Party, I think they think that that will further instigate and motivate actions taking against the Supreme Court and perhaps the judiciary. That's my view. It's a terrible, terrible state of affairs.
A sad state of affairs. And they do this in one sentence. Because they can't justify what they did. What are they going to say?
What are they going to say, the commonwealth judge was exactly right. And she's the only one of all the judges who's had the guts to stand up. She would be a good Supreme Court justice because apparently, Amy Coney Barrett wasn't able to. Our heroes on the bench weren't able to.
So you're not going to find me -- and I never have -- defending lifetime appointments to the Supreme Court. What I opposed was efforts to change the number of justices on the court.
But I've always supported, as I told you over and over when we were talking about my book, Men in Black, when we're talking about my book, The Liberty Amendments for six months. 14-year limits on Supreme Court justices. You see, we get caught up in sometimes in defending the indefensible. Chapter four of The Liberty Amendments, an amendment to establish term limits for Supreme Court justices and supermajority legislative override by Congress and the state legislatures. So I believe in term limits for Supreme Court justices, I do not believe in threatening the institution of the court by packing it, and I believe those threats have resonated in the hallways of the Supreme Court. Of course, they would deny it. "No, no, of course not."
But if you're going to reject this emergency injunctive relief request at least have the intellectual integrity to explain it. To explain it. They don't explain it.
They leave it to the legal analysts and the bloggers to try and figure it out. I'm just not sanguine that the Texas case is going to reach any better result as a result of the things I'm explaining to you for the most part and God, do I pray I'm wrong.
I think this court is hiding under the proverbial table.
I'll be right back.