The Glenn Beck Program - July 20, 2024


Ep 5 ｜ How Leftists Infused Activism into the Supreme Court ｜ The Beck Story


Episode Stats

Length

1 hour and 5 minutes

Words per Minute

143.83603

Word Count

9,446

Sentence Count

570

Misogynist Sentences

6

Hate Speech Sentences

5


Summary


Transcript

00:00:00.000 At 1.05 a.m. on June 8, 2022, a taxi stopped off on a quiet street in Maryland suburb of
00:00:13.960 Washington, D.C. A 26-year-old man dressed in black stepped out of the taxi carrying a
00:00:20.620 backpack and a suitcase. The man's luggage contained a tactical knife, a Glock 17 pistol
00:00:27.920 with ammunition, pepper spray, zip ties, a hammer, a screwdriver, nail punch, a crowbar,
00:00:35.260 a pistol light, and duct tape. His destination was a house just ahead of him on the dark street.
00:00:42.760 The mission that propelled the man on a cross-country journey from his home in Simi Valley, California,
00:00:48.480 began five weeks earlier when Politico published a leaked draft of a U.S. Supreme Court opinion
00:00:55.580 written by Justice Samuel Alito that would strike down the landmark Roe v. Wade decision.
00:01:02.980 Politico would only say that it, quote, received a copy of the draft opinion from a person familiar
00:01:09.700 with the court's proceedings, end quote. Here's one of the article's co-writers, political reporter
00:01:15.720 Josh Gerstein.
00:01:16.720 I'm not aware of any prior case where you've actually had a Supreme Court draft opinion publicly
00:01:22.660 released and exposed by a news outlet in advance of the final decision in that case. It's a very
00:01:29.180 secretive institution. Most of the time, you don't hear a lot beyond the official arguments and the
00:01:35.780 official opinions that come out from the court. For weeks after this draft opinion was leaked,
00:01:41.460 protestors descended on the homes of conservative Supreme Court justices, like these marching
00:01:47.160 through Justice Amy Coney Barrett's neighborhood.
00:01:49.500 No privacy for us. No peace for you. No privacy for us. No peace for you.
00:01:56.680 The California man with his luggage full of weapons and tools took the leaked Supreme Court draft
00:02:02.140 opinion as proof that a woman's federal right to abortion was about to end, and he was furious about it.
00:02:09.580 His destination that night was the home of Justice Brett Kavanaugh. Shortly after he exited the taxi,
00:02:17.160 two U.S. Marshals stationed outside of Kavanaugh's house spotted the man. Moments later, the man
00:02:23.840 spotted the marshals too. He pulled out a cell phone, called 911, and told the operator of his plan to
00:02:30.140 kill a Supreme Court justice and then himself. Police quickly converged on the scene and arrested him.
00:02:36.800 He was charged with attempted murder, and according to a federal affidavit, he had an even larger
00:02:43.100 ambition to alter the makeup of the Supreme Court. He told internet users his goal was to reverse the
00:02:50.400 then leaked draft decision of the sense overturned Roe v. Wade decision. Authorities say Roski wrote
00:02:55.820 killing one jurist could change the decisions of the court for decades to come. I'm shooting for three.
00:03:02.900 Adding all of the major decisions for the past 10 years have been along party lines,
00:03:07.820 so if there are more liberal than conservative judges, they will have the power.
00:03:13.320 So who leaked the draft of the Dobbs opinion that led to this potential assassination attempt on a
00:03:20.080 Supreme Court justice? In an interview with the Wall Street Journal several months after the final
00:03:26.820 Dobbs decision, Justice Samuel Alito said, quote, I personally have a pretty good idea who is
00:03:33.240 responsible for the leak, but that's different from the level of proof that is needed to name
00:03:38.320 someone. On the idea that a conservative justice could have leaked his draft opinion, Alito said,
00:03:44.600 quote, That's infuriating to me. Look, this made us targets of assassination.
00:03:49.820 Why would I do that to myself? Why would the five of us have done that to ourselves? It's quite
00:03:56.440 implausible, end quote. How did we arrive at such a desperate, desperate place that this
00:04:04.280 unprecedented leak could even happen? How did the Supreme Court become such a frenetic focal point
00:04:10.620 of our ideological battles? Well, it didn't happen overnight. It was methodical and decades-long work
00:04:18.180 of progressive experts. Ever wonder why things are the way they are in America? Welcome to The Beck
00:04:28.820 Story, my podcast about how our past informs our present. How did we get here? This first season is
00:04:36.560 all about a cult of expertise developed in America, how it permeated our government, how this allegiance
00:04:43.360 to so-called expertise has far-reaching implications for our nation right now. A remarkably consistent
00:04:51.180 through-line extends from the original progressive movement right through the actions of the left-wing
00:04:57.800 elites today. History can turn on a dime. In America's case, that's what happened on September 6, 1901,
00:05:07.180 when President William McKinley stepped in front of a receiving line at the Pan American Exposition
00:05:13.540 in Buffalo, New York. An anarchist named Leon Solgaz waited his turn in the long line. When he stepped
00:05:22.240 forward to shake hands with President McKinley, he suddenly pulled a .32 caliber revolver from his jacket
00:05:27.560 pocket and fired twice at point-blank range. The first bullet ricocheted off of one of McKinley's coat
00:05:35.000 buttons, but the second bullet entered his abdomen and lodged in his back. McKinley survived
00:05:41.620 for eight days before infection and gangrene ultimately took his life. Vice President Theodore
00:05:47.680 Roosevelt was on a camping trip in the Anirondack Mountains when he was summoned to a friend's house
00:05:52.900 in Buffalo to take the oath of office as the nation's new president. America had its first
00:05:59.300 progressive president, and history turned on a dime.
00:06:06.920 The sudden presidency of Theodore Roosevelt was a pivotal moment in multiple ways. One
00:06:12.300 of them was his nomination of Oliver Wendell Holmes Jr. to the Supreme Court in 1902. Holmes
00:06:18.400 Jr. was a Boston native and a Union Civil War veteran. He was wounded three times in three
00:06:24.340 separate battles, including Antietam and Chancellorsville. He had been on the Massachusetts Supreme Court
00:06:30.740 for 20 years where he strived to make a name for himself in the legal world, the way his
00:06:35.800 father had been a national celebrity as a doctor and a published poet. The very famous Holmes
00:06:42.000 Sr. cast a long shadow from which Holmes Jr. wanted to escape. His nomination to the U.S.
00:06:48.580 Supreme Court gave Holmes Jr. a new lease on his lifelong ambition to equal the fame of his
00:06:55.020 beloved father. Despite that ambition, the initial phase of Holmes' career as a U.S. Supreme
00:07:00.980 Court Justice was fairly run-of-the-mill. He wasn't really even a standout on the bench
00:07:06.540 and had even made a plan to resign from the court by the end of 1912, his 10th year as a Supreme
00:07:13.680 Court Justice. But a group of young Washington, D.C. professionals, all of them progressive,
00:07:20.240 became devoted fans of the 71-year-old Holmes and inspired him to table his plan to ride quietly
00:07:27.200 into the sunset. The most devoted of these fans was the energizer bunny of progressivism,
00:07:33.800 a young lawyer named Felix Frankfurter. As a Harvard Law School alum himself, Holmes was accustomed to being
00:07:41.780 introduced to eager young Harvard graduates. But none of them had the lasting influence on
00:07:47.100 Holmes' life that Felix Frankfurter had. Frankfurter ultimately caused progressive elites to believe
00:07:54.100 in Holmes, and that in turn fueled Holmes' belief in his own legend.
00:08:02.000 Felix Frankfurter. He was born in Austria, the third of six children. His family immigrated to the U.S.
00:08:08.980 when he was 12. He arrived not speaking a word of English. But by the time he graduated high school,
00:08:14.580 he was third in his class and on his way to the debate team. One of Frankfurter's Harvard Law
00:08:20.260 professors first introduced him to Oliver Wendell Holmes Jr. after Frankfurter had moved to Washington,
00:08:25.760 D.C. to work as a lawyer at the Bureau of Insular Affairs. Frankfurter usually made a strong impression,
00:08:33.040 for better or worse, on every person he met. And Holmes was no exception. But few people wowed
00:08:39.820 Frankfurter as much as Holmes did from the get-go. Frankfurter received a coveted lunch invitation to
00:08:45.860 the Washington, D.C. home of Holmes and his wife. Afterward, Frankfurter wrote to a friend about his
00:08:51.160 meeting with Holmes, saying,
00:08:52.140 I came away with the keen relief of having been on Olympus and finding that once God did not have
00:08:58.280 clay feet. Frankfurter began hyping Holmes as an unsung genius of the Supreme Court,
00:09:04.940 the intellectual giant who would be the guiding light for the burgeoning progressive movement.
00:09:10.700 Frankfurter's hype campaign is no overstatement because it is hard to imagine someone better
00:09:16.560 connected than he was. One friend said Frankfurter didn't collect books or pictures. Instead,
00:09:22.240 quote, he collects people, end quote. Well, thanks to this growing network, Frankfurter landed in a sort
00:09:30.580 of epicenter of progressivism. It was a three-story red brick row house in Georgetown. He lived there
00:09:37.180 with four close friends, all of them progressives, and all worked in government jobs. In what would be a
00:09:43.240 prophetic indicator of the expert progressive mindset, they soon started calling their residents
00:09:48.880 the House of Truth. Historian Brad Snyder, who wrote a fascinating history of the House of Truth
00:09:55.520 and the men who lived there, described it as, quote, the center of a new liberal network, end quote.
00:10:02.680 The House of Truth became an elite but informal sort of club where well-placed federal workers mingled
00:10:09.640 shared ideas and gossip and ultimately worked toward the same progressive ideals. Frankfurter said,
00:10:16.740 almost everybody who was interesting in Washington sooner or later passed through that house.
00:10:23.380 A dinner invitation to the House of Truth became such a hot social ticket in D.C. that local newspapers
00:10:29.800 covered it. One of the most frequent guests at the house was Oliver Wendell Holmes Jr.
00:10:35.380 And his star rose quickly among the progressive elite because, as historian Brad Snyder described it,
00:10:41.440 quote, of all of the great talkers in Washington, none compared to Holmes.
00:10:50.720 What endeared Holmes to Frankfurter and other progressives was his judicial decisions in support
00:10:56.640 of the labor movement and other progressive legislation. He often voted in a minority on
00:11:01.920 the Supreme Court cases and wrote sharp, short dissenting opinions that showed a real rebel streak that
00:11:08.880 progressives loved. As Holmes once described his Supreme Court opinions to his friend, quote,
00:11:14.640 The vulgar hardly will believe an opinion important unless it is padded like a militia brigadier general.
00:11:20.240 You know my view on that theme. The little snakes are the poisonous ones.
00:11:26.560 Holmes' most famous dissent came in 1905 in the case of Lochner versus New York.
00:11:33.200 The question was whether the state of New York had the right to restrict the daily and weekly
00:11:38.720 working hours of bakers. The court ruled that the New York law was unconstitutional because it violated
00:11:45.520 the 14th Amendment's Due Process Clause, which holds that a state may not deprive any person of life,
00:11:52.880 liberty, or property without the due process of law. In other words, the majority argued that a baker and
00:11:59.680 a bake shop owner should be able to make their own work contract arrangement without state interference.
00:12:06.640 In his famous dissent, Holmes made a rather bizarre claim, essentially that the Constitution
00:12:13.040 is not primarily about protecting individual rights. He argued instead for,
00:12:18.640 The right of the majority to embody their opinions in law. The word liberty in the 14th Amendment is
00:12:25.120 perverted when it is held to prevent the natural outcome of a dominant opinion.
00:12:29.840 In other words, Holmes was saying that the Supreme Court should take a hands-off approach to these
00:12:34.880 types of issues and let the majorities in legislatures rule freely. Law Professor David E. Bernstein wrote that
00:12:43.840 Holmes and his progressive supporters, quote, had little use for individual rights and thought the
00:12:50.480 police power virtually unlimited, end quote. Holmes' version of true liberty would allow restriction
00:12:58.480 of liberty if that's how the majority ruled. He even wrote to a friend, quote,
00:13:03.360 If my fellow citizens want to go to hell, I will help them. It's my job.
00:13:08.000 This new radical and wildly inaccurate view of the basic purpose of the United States Constitution
00:13:14.960 was a revelation to Frankfurter and to his fellow progressives.
00:13:18.800 Under this constitutional philosophy, imagine what true experts could accomplish.
00:13:24.960 It's the same philosophy that produced the left-wing concept of the living Constitution,
00:13:31.200 one whose interpretation changes based on the evolving whims of the American people.
00:13:36.240 Here is Supreme Court Justice Sonia Sotomayor speaking to a group in 2020.
00:13:42.080 The Constitution is not a dead document, but a living one that was intended to last as long
00:13:49.520 as the country could last and that the founders hoped it would be for basically forever.
00:13:55.680 And that it was intended to grow with the society and to be interpreted
00:14:00.880 within the norms that the society develops.
00:14:05.520 Author Ayn Rand once said that Justice Holmes, quote,
00:14:09.520 has had the worst philosophical influence on American law, end quote.
00:14:15.120 She may have been right, but progressives gulped down Holmes' philosophy.
00:14:20.400 And the Lochner v. New York case formed the template for how Holmes would rule or dissent
00:14:26.400 in cases for the rest of his Supreme Court career.
00:14:30.080 In the infamous free speech case, Schneck v. U.S. in 1919, Holmes wrote the unanimous opinion
00:14:37.520 that Charles Schneck's leaflets protesting the U.S. military draft during World War I was not
00:14:44.800 constitutionally protected free speech because the leaflets created a clear and present danger.
00:14:51.040 Holmes also compared Schneck's anti-draft messaging to falsely shouting fire in a crowded theater.
00:14:59.520 Holmes' worst ever decision, however, may have been the 1927 case Buck v. Bell.
00:15:06.000 For the full tragic story of that case, make sure you listen to episode two of this season.
00:15:10.800 Again, writing for the majority opinion, Holmes upheld the state of Virginia sterilizing a young
00:15:15.680 woman against her will.
00:15:17.520 Incredibly, Holmes and his progressive supporters failed to see the danger of majority rule for
00:15:22.880 basic personal liberties.
00:15:25.280 After the Buck v. Bell case, Holmes said the decision gave him pleasure and wrote in his
00:15:31.280 letter to a close friend,
00:15:33.120 I delivered an opinion upholding the constitutionality of a state law for sterilizing imbeciles the other day
00:15:39.440 and felt that I was getting near the first principle of real reform.
00:15:43.520 As progressivism began to take over major institutions of American life,
00:15:48.240 Holmes and his anti-liberty decisions were revered.
00:15:52.320 And Frankfurter was most responsible for crafting that image of Holmes as sort of a progressive Yoda.
00:15:59.680 The New Republic magazine was born in the House of Truth, with Frankfurter as one of its co-founders.
00:16:06.080 It became the primary mouthpiece of the House of Truth's network.
00:16:10.320 Holmes claimed not to be interested in newspapers or politics,
00:16:14.160 but he admitted the New Republic became his main source of news and stayed that way for the rest of
00:16:20.240 his life. Frankfurter especially used the magazine for decades as one of his megaphones to support
00:16:27.680 the progressive causes and individuals he was passionate about. Frankfurter called Holmes
00:16:34.560 truly the impersonal voice of the constitution.
00:16:37.440 The cascade of over-the-top praise for Holmes was never ending. Here's a sample of what other
00:16:43.840 progressives said about him, quote, he's the summit of hundreds of years of civilization,
00:16:50.000 the inspiration of ages yet to come. Or, for the American lawyer, he's the beau ideal,
00:16:56.640 and the lawyer quotes his aphorisms as the literate layman quotes Hamlet.
00:17:02.320 He is a judge who deals with things, not words, man who realizes that a document
00:17:08.480 which is to rule a great people must in its very nature allow for a wide and growing field
00:17:15.440 for experimentation. It's hard to imagine now, but during the 1912 presidential election,
00:17:22.000 the question of which party would become the home of progressivism hung in the balance.
00:17:27.280 The incumbent, William Howard Taft, retained the Republican nomination. Woodrow Wilson surged to
00:17:33.760 the Democratic nomination, and Theodore Roosevelt jumped in the race, trying and failing to beat
00:17:39.600 Taft for the Republican nomination, then running as a third-party candidate under the new progressive
00:17:45.440 party banner. Some progressives, like Wisconsin Senator Robert LaFolliette, wanted the Republican
00:17:52.480 party to become progressive. Others, like Louis Brandeis, whom you'll remember from previous
00:17:58.160 episodes this season, believed Woodrow Wilson's progressivism made the Democratic party a
00:18:03.520 natural home for the movement. But most of the progressives orbiting the House of Truth,
00:18:08.960 especially Felix Frankfurter, threw their weight behind Theodore Roosevelt.
00:18:14.560 The strange election of 1912 mixed Republican, Democrat, and progressive votes with Woodrow Wilson,
00:18:21.760 ultimately benefiting most from Roosevelt's third-party candidacy. The election signaled the end of
00:18:28.480 Roosevelt's sunburst of a political career. It also sent his diehard progressive supporters into Woodrow
00:18:35.360 Wilson's camp. By the next presidential election, Wilson sealed the loyalty of the progressives to the
00:18:41.520 Democratic Party when he nominated one of their own to the U.S. Supreme Court. Louis D. Brandeis.
00:18:48.320 Wouldn't it be nice if you lived in a country where you didn't have to constantly worry that your
00:18:53.600 government was lying to you? A country where you could take it for granted that they weren't making
00:18:58.880 decisions based on what they think is in your best interest, and not what you think is. History shows
00:19:05.440 us, unfortunately, that the more bloated a government gets, the more this happens. I make it a point to make
00:19:11.840 critical decisions for myself and my family, and you should too. You should get a Jace case. It is a
00:19:17.760 personalized emergency kit that contains essential antibiotics and medications that treat the most
00:19:24.080 common and deadly bacterial infections. It provides five life-saving antibiotics for emergency use, and all
00:19:30.080 you have to do is fill out a simple form online, and you'll have it in case you need it. There are also
00:19:35.840 add-on options like EpiPens and Ivermectin. Jace Medical. They encourage you to take your family's
00:19:42.160 health into your own hands. Go to Jace.com today and enter the promo code BECK at checkout for a
00:19:47.840 discount on your order. That's promo code BECK at J-A-S-E dot com. April 15th, 1920. It was a normal payday at
00:20:00.080 the Slater and Morrill Shoe Company in South Braintree, Massachusetts. It was mid-afternoon as
00:20:06.320 the company's paymaster and security guard moved the payroll boxes full of cash from the company
00:20:11.920 office to the main factory building. Suddenly, two men rushed into their path, pulled out the pistols,
00:20:17.920 and shot the paymaster and the security guard multiple times. As the victims crumpled to the ground,
00:20:24.080 the assailants scooped up the two payroll boxes and sped away in a Buick. They escaped with over
00:20:30.800 $15,000, worth about $234,000 today. A few days later, the abandoned getaway car was tracked down
00:20:41.760 in a local garage. Police traced the car to a man named Mike Boda, who had already fled to Italy. Police
00:20:49.120 soon located Boda's colleagues, two Italian immigrants, and an anarchist named Nicola Saccio
00:20:55.760 and Bartolomeo Vincetti. They each had loaded guns on them when they were arrested.
00:21:01.840 Sacco was carrying a .32 caliber handgun with bullets made by the same manufacturer as those
00:21:07.040 recovered at the crime scene. But a year later, the murder trial of Sacco and Vincetti captivated the
00:21:14.400 nation. Was it the open and shut case of downtrodden immigrants committing a horrific robbery as the
00:21:22.000 prosecution insisted? Or were the two men being railroaded thanks to the anti-communist and anti-immigrant
00:21:29.680 sentiment that was permeating the nation at the time? The case of Sacco and Vincetti was a major turning
00:21:37.120 point for left-wing activism. Progressives made it a worldwide cause, raising millions of dollars for
00:21:43.600 their defense. There were mass public demonstrations, walkouts organized by labor unions, even bombings at
00:21:51.280 the U.S. embassies in Paris and Buenos Aires. The left transformed Sacco and Vincetti into a symbol of
00:21:59.040 prejudice in the American justice system. Few people were more obsessed with the Sacco-Vincetti cause
00:22:06.480 than Felix Frankfurter and Supreme Court Justice Louis Brandeis. Frankfurter first met Brandeis in 1905
00:22:15.920 when Frankfurter was a law student at Harvard and Brandeis was there giving a speech titled,
00:22:21.200 The Opportunity in Law. Their friendship blossomed years later when Brandeis was a frequent guest
00:22:28.320 at the House of Truth. In 1914, Brandeis counseled Frankfurter to accept a job as a law school professor at
00:22:35.840 Harvard, which he did. Two years later, when Woodrow Wilson nominated Brandeis to the Supreme Court,
00:22:42.400 Frankfurter was a one-man PR machine on behalf of Brandeis, publishing articles in the New Republic
00:22:48.960 and other outlets in favor of his confirmation. That support cemented their friendship, eventually
00:22:55.760 leading Brandeis to describe Frankfurter as half-brother, half-son.
00:23:00.400 On the Supreme Court, Brandeis and Oliver Wendell Holmes Jr. were close friends and allies.
00:23:08.960 They had known each other since the late 1800s when Brandeis had a private law practice in Boston
00:23:14.400 and Holmes was on the Massachusetts Supreme Court. From his position at the Harvard Law School, Frankfurter
00:23:21.040 handpicked every new law clerk for both Brandeis and Holmes from among his own students. Brandeis and
00:23:29.120 Holmes accepted Frankfurter's choices sight unseen. After completing their Supreme Court clerkships,
00:23:35.520 these clerks later became progressive operatives throughout the federal bureaucracy, remaining
00:23:41.520 loyal to the Frankfurter-Brandeis agenda. When Brandeis and Holmes had been together on the Supreme
00:23:48.080 Court for a few years, Chief Justice William Howard Taft described Holmes as, quote,
00:23:54.160 so completely under the control of brother Brandeis that it gives to Brandeis two votes instead of one.
00:24:03.200 Whenever they voted in the minority, Brandeis encouraged Holmes to write the sharp
00:24:08.160 dissents that endeared him to the progressives. Then Frankfurter would promote them in published
00:24:13.280 reviews. Once saying, quote, they are dissents that shape history and record prophecy. Where others are
00:24:20.480 guided through experience of life, he's led by the divination of the philosopher and the imagination
00:24:27.120 of the poet. He is indeed philosopher become king. Frankfurter was the ultimate spin doctor and the efforts
00:24:35.680 paid off when both Brandeis and Holmes landed their own covers of Time magazine. For a full-time Harvard
00:24:43.360 law professor, Frankfurter spent a prodigious amount of time corresponding with Brandeis and Holmes and
00:24:49.840 promoting and lobbying for progressive causes. By the 1920s, progressives had taken to calling themselves
00:24:56.720 liberals, and sometimes Frankfurter's brand of liberalism made even some of his liberal friends squirm.
00:25:04.240 Frankfurter had no qualms about associating with people and movements radically opposed to the
00:25:09.920 U.S. constitutional system. After Frankfurter represented a group of communist immigrants
00:25:15.200 that the Justice Department was trying to deport, the FBI ordered an investigation of him. J. Edgar
00:25:22.080 Hoover called Frankfurter the most dangerous man in the United States, which is kind of ironic coming from
00:25:28.320 J. Edgar Hoover. But clearly Frankfurter wore his liberalism on his sleeve and was eager to run in
00:25:35.600 the radical circles when it suited his agenda. Holmes, meanwhile, never backed down from his ideal that
00:25:42.560 majority rule was supreme, even if it meant communism. He said,
00:25:47.520 If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the
00:25:54.160 dominant forces of the community, the only meaning of free speech is that they should be given their
00:25:59.680 chance and have their way. In 1921, Sacco and Vincetti were tried, convicted, and sentenced to die for the
00:26:08.640 murders outside of the shoe company in South Braintree, Massachusetts. Five years later, they were still on
00:26:16.240 death row as every possible legal maneuver was attempted by their progressive sponsors. The
00:26:22.800 rudimentary forensic analysis of the time seemed to indicate that the gun owned by Nicola Sacco was one
00:26:29.440 of the murder weapons. The prosecution argued that the pistol which Vincetti had when he was arrested
00:26:36.080 was the one he had stole off the dead body of the security guard. The suspects also made false
00:26:41.840 statements to the police when they were arrested. But Sacco and Vincetti's progressive defenders
00:26:47.680 insisted that they were victims of the anti-radical, anti-immigrant hysteria. Felix Frankfurter became
00:26:55.520 interested in the case through a widow named Elizabeth Evans. She was a lifelong friend of Louis
00:27:01.120 Brandeis and his wife. She sometimes even lived with them. She credited Brandeis with nudging her into
00:27:07.280 social activism after her husband died. Evans attended to the first trial of Sacco and Vincetti
00:27:13.360 and was riveted. She befriended the murderer suspects and regularly visited them in jail.
00:27:20.240 Then she, along with Frankfurter's wife, pled to get him involved. Frankfurter soon went all in on the case.
00:27:28.240 He helped write articles in the New Republic, enlisted his journalist friend Walter Lippmann to join the
00:27:34.480 effort in the New York world and took out full-page ads in the New York Times. Frankfurter wrote a 23-page
00:27:41.680 article for the Atlantic laying out what he considered to be the legal problems with the trial,
00:27:47.040 discrepancies in witness testimony and evidence, a prejudiced judge and the overall red scare environment.
00:27:55.760 Just a month later, he turned the article into a book and donated all of the proceeds to the Sacco and
00:28:01.200 Vincetti defense fund. According to historian Brad Snyder, Frankfurter, quote, turned the Sacco and
00:28:08.240 Vincetti case into nothing less than a litmus test for American liberalism, end quote.
00:28:15.600 Frankfurter's constant public pressure was a major factor in convincing Massachusetts Governor Alvin T.
00:28:22.160 Fuller to appoint a three-man committee to review all of the evidence in the case one more time.
00:28:28.080 The Lowell Committee, as it became known, included a retired judge, the president of MIT, and was
00:28:35.360 chaired by Harvard University President A. Lawrence Lowell. After reviewing the case and conducting more
00:28:42.160 interviews with witnesses, the Lowell Committee determined that the original verdict was correct,
00:28:48.080 and that Sacco and Vincetti were guilty. Who had urged Frankfurter to fight this case so hard in the press?
00:28:55.760 Louis Brandeis, who by then had been a U.S. Supreme Court justice for a decade. Brandeis even paid
00:29:03.360 Frankfurter $500 for the effort, the equivalent of around $9,000 today.
00:29:11.440 With the clock ticking rapidly towards Sacco and Vincetti's execution date, their lawyers showed up at the
00:29:16.800 summer home of Justice Holmes right outside of Boston. They pleaded with him to grant a stay of execution
00:29:23.040 so that the case could be appealed to the U.S. Supreme Court when it reconvened in the fall.
00:29:28.080 The lawyers took almost three hours to make their case to the 86-year-old Justice, but in the end,
00:29:33.760 he declined to grant the stay, arguing that he had no legal authority to interfere with the proceedings
00:29:39.840 of the Massachusetts State Court. As a result of the Holmes decision, the U.S. Supreme Court received a
00:29:46.560 bomb threat and plainclothes police officers were stationed at all the Justice's homes. Some things
00:29:54.240 never change with the radical left. Essentially, out of options, Frankfurter instructed the defense
00:30:00.720 team to try a last-ditch effort by visiting Brandeis at his summer home in Cape Cod. Brandeis met with
00:30:08.400 lawyers on his front porch. Unlike, however, their session at Holmes' house, this meeting only lasted a few
00:30:14.480 minutes. Brandeis told him he couldn't take any action at all. They protested, but he cut them off,
00:30:21.120 insisting he would disqualify himself from any appeal to the U.S. Supreme Court because of his
00:30:26.720 personal connections with the case. In addition to his friendship with Elizabeth Evans, the woman who
00:30:33.040 had convinced Frankfurter to get involved with the case, Sacco's wife and two children had lived in one
00:30:38.960 of Brandeis' houses during the original trial, and his wife donated money to the Sacco-Vicenti
00:30:45.520 defense fund. There was also his financial arrangement with Frankfurter to argue for the
00:30:51.280 defendants in the press. As much as Brandeis likely wanted to grant a stay of execution, it would have
00:30:58.080 exposed his extreme prejudice in the case. Not really a good look for a justice of the U.S. Supreme Court.
00:31:04.880 In the end, he could not risk outing himself. At midnight, August 23, 1927, Sacco and Vicenti went to
00:31:15.760 the electric chair. Frankfurter's wife, Marion, was reportedly so devastated that when she heard the
00:31:22.000 news, she collapsed and fell into a months-long depression. Holmes had never been as convinced as
00:31:29.280 Frankfurter about Sacco and Vicenti's innocence. He wrote to a friend,
00:31:33.360 I doubt if anyone would say that there was no evidence warranting a conviction.
00:31:38.240 The left has never gotten over the Sacco and Vicenti case. New investigations and forensic analysis
00:31:44.720 were conducted in 1961, and again in 1983. Both times revealed Sacco's handgun as having fired the
00:31:53.280 bullets. In 2005, a letter was discovered, written from some socialist author, Upton Sinclair,
00:32:00.080 to his attorney in 1927. Sinclair recounted that he was in Boston conducting research for a book
00:32:07.280 when he met with Sacco and Vicenti's trial lawyer who told them that the men were guilty. The lawyer
00:32:13.760 even explained to Sinclair how he had, quote, framed a set of alibis for them, end quote.
00:32:19.840 Brandeis and Holmes both had horrendous Supreme Court records when it came to racial issues. They
00:32:27.440 voted with a majority in many decisions that upheld racial segregation and discrimination,
00:32:33.360 including reaffirming the racist separate but equal doctrine. But by the time of the Sacco-Vicenti
00:32:39.840 saga, Holmes seemed to be evolving beyond his left-wing peers when it came to race. He wrote to a friend,
00:32:47.360 I cannot but ask myself why this so much greater interest in red than black. By red, he meant
00:32:54.480 communism and radical leftist movements in general. Holmes continued, A thousand-fold worse cases of
00:33:01.600 Negroes come up from time to time, but the world does not worry over them. It is not a mere simple
00:33:07.600 abstract love of justice that has moved people so much. It was an insightful point that the American
00:33:14.080 left still refuses to reckon with. It's why over 930,000 babies murdered in abortion clinics
00:33:21.440 went unnoticed in 2020. But the unjust death of George Floyd sparked the most costly riot in U.S.
00:33:28.960 history. And it's why U.S. college campuses hosted appalling anti-Semitic protests by pro-Palestinian
00:33:36.640 supporters glossing over the 1,200 Jews who were murdered by a Moss terrorist on October 7, 2023.
00:33:45.040 Indeed, this is not some simple abstract love of justice that has moved people so much.
00:33:54.960 Woodrow Wilson, especially with his wild executive overreach during World War I, showed and inspired
00:34:02.000 progressives with what could be done by an expert in the White House. Theodore Roosevelt had been the
00:34:08.640 trailblazer in that regard, and Wilson took that power to the next level. But during the 1920s, the
00:34:14.720 progressives only had their two heroes on the Supreme Court to cling to. And that reverence for judicial
00:34:22.000 activism, or as Brandeis had put it, the opportunity in law, took root on the left and has only grown
00:34:29.120 stronger since. Because of this growing importance heaped on the Supreme Court by the left, Brandeis
00:34:36.000 and Frankfurter propped up Holmes on the court for as long as possible. In 1928, Holmes turned 87 and
00:34:44.640 passed Roger B. Taney to become the oldest ever Supreme Court justice. When Holmes' doctor advised that
00:34:51.680 he retire from the court, Brandeis talked Holmes out of it.
00:34:58.080 To express one's feelings, as the end draws near, is too intimate a task. But I may mention one thought
00:35:07.600 that comes to me as a listener in. The riders in a race do not stop short when they reach the goal.
00:35:14.720 That was Holmes speaking to a nationwide radio audience on CBS at the end of a special program
00:35:23.360 in honor of his 90th birthday. Nine months later, he finally succumbed to the rigors of Supreme Court
00:35:30.800 life and retired. He still holds the record as the oldest person to serve on the court.
00:35:37.200 Holmes died in 1935, just two days shy of his 94th birthday. Among the glowing tributes for
00:35:45.120 Holmes was this one in Harper's Magazine that said he, quote, ceaselessly remembered that the
00:35:51.280 constitution is not a gate, but a road. The left was just getting started with his expert opinion of
00:35:59.200 our constitution as a road. After the execution of Sacco and Vicente, Louis Brandeis tried to console
00:36:05.920 Frankfurter in a letter saying, the end of Sacco Vanzetti is only the beginning. They know not what
00:36:12.480 they do. It's enough of a struggle just to live our lives and try to keep tyranny at bay day after
00:36:20.400 day without also having to deal with pain on a regular basis. And yet our bodies don't really
00:36:25.760 give us much of a choice. Our biggest cause of our pain is inflammation in our joints. I know,
00:36:31.680 because I used to get it so badly in my hands. I couldn't, I couldn't always button my shirt
00:36:36.160 in the morning, let alone do so many of the things I love to do, like painting or writing things by
00:36:41.840 hand. Thank God I found out about relief factor, eventually gave it a try. My, my wife made me try
00:36:48.480 it. I didn't think it would work, but I got my life back and you could get your life back as well.
00:36:53.200 There's only one way to know. If you're living with aches and pains, see for yourself how relief
00:36:58.560 factor, a daily drug-free supplement could help you feel and live better every day.
00:37:04.000 Join the over 1 million people who've turned to relief factor and you could start feeling better
00:37:08.800 in three weeks or less. Visit relieffactor.com or call 800-4-RELIEF, 800 the number 4-RELIEF.
00:37:15.920 Save on your first order. That's relieffactor.com.
00:37:19.040 The 1920s was not a great decade for progressive power. The fact that Republican presidents were
00:37:27.440 elected in a row, Warren Harding, Calvin Coolidge, and Herbert Hoover, can be read in part as a
00:37:33.680 backlash against the authoritarian excesses of Woodrow Wilson that I've covered in episode three
00:37:39.840 of this season. But after Wilson left office, progressives or liberals, as many of them had
00:37:45.120 taken to calling themselves by then, did not control the executive branch for over a decade.
00:37:51.360 It doesn't mean they were dormant by any stretch. It means that they were desperate to find other
00:37:56.640 ways to wield influence, especially on the Supreme Court. As historian Brad Snyder put it, they quote,
00:38:03.280 used the courts to advance their political and legal agenda. The legal system offered another path to
00:38:10.080 success. Oliver Wendell Holmes Jr. had shown progressives how to pursue their agenda on the
00:38:16.720 Supreme Court. Louis Brandeis, who was way more of a progressive political activist than Holmes,
00:38:22.720 gladly took up that mantle. Brandeis was the architect of Woodrow Wilson's agenda when Wilson
00:38:29.040 was first elected. As Wilson's chief economic advisor, Brandeis designed the Federal Reserve System
00:38:35.840 and the new Federal Trade Commission. He became indispensable to Wilson, who after nominating
00:38:42.720 Brandeis to the Supreme Court said, quote, I need Brandeis everywhere, but I must leave him somewhere.
00:38:50.560 Brandeis was far too much of a political activist to leave that part of his work behind when he became
00:38:56.080 a Supreme Court justice. So he quickly enlisted his apprentice and close friend Felix Frankfurter
00:39:02.080 to carry out the activism for him. Thanks to his new law practice and savvy investments, Brandeis was a
00:39:09.440 millionaire. Shortly after joining the Supreme Court, Brandeis opened a special account at a bank in Boston
00:39:15.600 in which he deposited annual payments of $1,000 to Frankfurter, which would in this day be equivalent
00:39:22.640 to over $24,000. In 1926, after a decade of this financial arrangement, Brandeis tripled Frankfurter's
00:39:31.600 annual pay. According to a historian, Bruce Allen Murphy, who wrote the definitive account of this
00:39:37.840 partnership in a 1982 book called The Brandeis-Frankfurter Connection, there is no indication
00:39:44.240 that any of Brandeis' fellow justices on the Supreme Court ever knew about the arrangement.
00:39:49.680 During the 1920s, Brandeis and Frankfurter's influence campaign had limitations since they
00:39:56.880 were no longer enjoying direct access to the White House like they had under Wilson. Instead,
00:40:02.640 they made do with their progressive allies in Congress, including Wisconsin Senator Robert LaFolliette.
00:40:10.080 They used those years out of power to spread their ideas in the press and lay patient groundwork for
00:40:16.960 the moment when the progressive would return to the White House. Here's how the Brandeis-Frankfurter
00:40:23.040 partnership worked. There was constant communication between them, sometimes even daily letters.
00:40:28.400 Historian Bruce Allen Murphy describes the letters from Brandeis as resembling, quote,
00:40:33.200 shopping lists with numbered items proposing legislation, political action strategies, and even
00:40:39.360 the latest insider information on Supreme Court cases. Then Frankfurter took action on Brandeis' requests.
00:40:46.480 He lobbied members of Congress directly, sometimes even drafted legislation for them to try
00:40:52.400 to correct decisions that Brandeis thought the Supreme Court had gotten wrong.
00:40:57.040 Frankfurter's close working relationship with the New Republic Magazine, his friendship with the editors
00:41:02.320 of the New York World and Boston Herald, plus numerous other contacts in mainstream press and law
00:41:08.640 review publications, enabled him to publish articles widely on any topic Brandeis ordered.
00:41:16.160 Often Frankfurter would take comments on current issues that he received in letters from Brandeis and
00:41:22.080 redraft them into unsigned articles that were published in the New Republic. If Frankfurter didn't
00:41:28.480 write the articles himself, he farmed them out to other journalists in his network. Or, as was often the case,
00:41:35.680 he used his carefully selected core of Harvard Law School students to research and write scores of
00:41:41.760 articles for he and Brandeis. When these law student produced articles got published, they often thanked
00:41:47.920 their professor Frankfurter for his inspiration and support, having no clue that the topic actually
00:41:54.480 originated with a sitting Supreme Court justice. These students handpicked by Frankfurter would eventually
00:42:02.320 be placed in influential positions in President Roosevelt's New Deal agencies, where they would enforce many
00:42:08.960 Brandeis policy ideas that they'd written about in the 1920s. Because of Brandeis' network of contacts in
00:42:16.800 the Wilson administration and later in FDRs, one biographer described Brandeis' influence as being,
00:42:23.600 quote, like many invisible wires into many government bureaus, end quote.
00:42:30.720 Brandeis and Frankfurter were constantly consulted when there were vacancies in government agencies.
00:42:36.720 Brandeis would suggest candidates to Frankfurter who would investigate them and either approve or deny
00:42:42.800 before giving their recommendations to the Wilson or FDR White House. Woodrow Wilson's weirdly close
00:42:50.160 personal advisor, Colonel Edward House, was even annoyed and perhaps a bit jealous of the influence
00:42:56.560 Brandeis had with Wilson. House remarked, quote, I cannot quite understand why a justice of the Supreme Court
00:43:04.640 should bother about other people's business as Brandeis does. The reason? Because Brandeis was the key
00:43:12.560 innovator in this new expert era of left-wing politics. Louis Brandeis began to see the light at the
00:43:20.160 end of the dark tunnel for progressives when Franklin D. Roosevelt was elected governor of New York in 1928.
00:43:26.160 Before FDR even won the election, Brandeis wrote Frankfurter about trying to establish a relationship with FDR.
00:43:33.360 Frankfurter and FDR were already acquaintances from their time working at the War Department during World War I.
00:43:39.520 Frankfurter and the networking phenom went to work writing for FDR with his usual mix of intelligence
00:43:46.560 and flattery. He and FDR became fast friends and Frankfurter became an informal policy advisor
00:43:53.440 during FDR's four years as the New York governor. While cultivating a personal relationship with FDR,
00:44:00.320 Frankfurter also continually passed him personal messages from Brandeis, like this one in 1930,
00:44:06.480 in which Brandeis told Frankfurter to advise FDR that he should be prepared to pounce upon Herbert
00:44:12.720 Hoover at the end of the 60-day period when Hoover said all unemployment trouble would be over.
00:44:18.640 Think about the uproar and calls for impeachment from the left that would happen if it was revealed,
00:44:24.160 for example, that Justice Clarence Thomas was advising Donald Trump or Governor Ron DeSantis
00:44:30.320 on how to capitalize on the latest gaffe by President Biden. When FDR was elected president in 1932,
00:44:38.480 his friendship with Frankfurter blossomed and the Brandeis-Frankfurter influence on the White House
00:44:44.480 grew. Brandeis always went out of his way to make it appear that he was detached from politics and
00:44:50.960 wasn't compromising his impartial position as Supreme Court Justice. In addition to Frankfurter,
00:44:56.960 he used several other intermediaries to get messages directly into Roosevelt's hands.
00:45:03.120 When he wanted to meet one-on-one with FDR, Brandeis would send a message to the White House
00:45:08.320 through an intermediary saying that he was at home and available to meet. That way, the subsequent
00:45:14.960 meeting, even though initiated by Brandeis, would technically be requested by Roosevelt.
00:45:21.120 One of the many policy areas where Brandeis was most passionate about was massive government spending
00:45:28.560 on public work projects. He and Frankfurter lobbied FDR and his cabinet members relentlessly about
00:45:34.960 establishing public work programs. Brandeis and Frankfurter even went so far as trying to get one of
00:45:40.560 their allies appointed to an influential position at the Treasury Department to help overcome resistance
00:45:47.280 to the massive government spending they proposed. That effort paid off when their pick, a Harvard
00:45:54.240 economist, was named financial advisor and executive assistant to the Treasury Secretary William Wooden.
00:46:02.800 Before their man was even offered the job, Frankfurter had sent him a telegram saying,
00:46:08.240 If a call comes, be sure to accept it. We have great need of you.
00:46:12.240 To pay for all these public work programs, Brandeis and Frankfurter were also passionate
00:46:18.000 about instituting a progressive tax system. In 1934, Brandeis instructed Frankfurter to communicate
00:46:25.520 to FDR that he should sell his massive tax the rich plan to the public, not as redistribution of wealth,
00:46:33.600 but distributing power, consumer power, economic power, political power, and the power of human
00:46:40.160 creative development. The Brandeis Frankfurter progressive tax campaign was also successful,
00:46:46.240 resulting in the highest top income tax rate in US history. The high point of this rate was in 1944,
00:46:53.920 when top taxpayers paid an income tax of 94%. The paid partnership between Brandeis and Frankfurter
00:47:03.440 placed so many Harvard Law School graduates in positions throughout the Roosevelt administration,
00:47:08.320 that they became known in Washington as Felix Happy Hot Dogs. George Peake, the head of the
00:47:15.040 Agricultural Adjustment Administration said, quote, A plague of young lawyers settled on Washington.
00:47:21.680 They all claimed to be friends of somebody or other and, mostly, of Felix Frankfurter.
00:47:28.480 They floated airily into offices, took desks, asked for papers, and found no end of things to be busy about.
00:47:34.800 I never found out why they came, what they did, or why they left.
00:47:40.880 These protégés served as eyes and ears for Brandeis and Frankfurter throughout the government.
00:47:46.960 Joseph Kennedy Sr. once complained to FDR that Frankfurter was running the administration.
00:47:52.480 Roosevelt got defensive and said, why I don't see Frankfurter twice a year. Kennedy retorted,
00:47:59.040 you see him 20 times a day, but you don't know it because he works through all these other groups of
00:48:05.840 people without your knowing it, end quote. General Hugh S. Johnson, a member of FDR's advisor group
00:48:13.840 known as the Brain Trust, called Frankfurter, quote, the single most influential individual in the United
00:48:21.120 States. And yet, no one knew that Frankfurter's chief influence was Supreme Court Justice Louis Brandeis,
00:48:30.000 and that Brandeis was paying him thousands of dollars a year to act on that influence.
00:48:36.560 The most blatant use of these Harvard Law School protégés was Brandeis and Frankfurter's collaboration
00:48:43.280 with Benjamin Cohen and Thomas Cochran, who worked as lawyers in FDR's New Deal agencies.
00:48:50.720 Cohen and Cochran met with Brandeis in his home, sometimes twice a month, to discuss issues and
00:48:56.640 potential legislation. Brandeis would then send specific proposals to Frankfurter, who would have
00:49:03.520 his Harvard students conduct any necessary research. Then Frankfurter would forward Brandeis'
00:49:09.360 proposals and the supporting research directly to FDR. Then FDR would instruct Cohen and Cochran
00:49:16.240 to write the necessary bills. It was a remarkable sort of legislation laundering operation that
00:49:23.200 started with the Securities Act of 1933 that allowed Brandeis to make it look like he was maintaining
00:49:30.880 appropriate separation from the executive branch activity. But in reality, it was a sitting Supreme
00:49:37.520 Court Justice helping craft legislation that he might later have to rule on if it came before the
00:49:43.840 court. By 1935, Frankfurter was invited to live at the White House for a summer to work shoulder to
00:49:50.080 shoulder to shoulder with FDR on policy, legislation, even writing speeches, all the while incorporating input
00:49:58.640 from Brandeis.
00:50:01.360 The financial arrangement between Brandeis and Frankfurter only ended once the inevitable happened.
00:50:07.120 Roosevelt appointing Frankfurter to the U.S. Supreme Court in 1939. Two weeks after Frankfurter
00:50:13.680 joined the court, Louis Brandeis retired. It was the end of an era, but certainly not the end of activism
00:50:22.080 from the bench. In fact, Frankfurter took it to the next level. He was so hands-on and so well connected
00:50:29.360 in Washington that he even held meetings with ambassadors and foreign secretaries in his
00:50:35.120 Supreme Court office. As a Supreme Court Justice, Frankfurter also continued writing and advising
00:50:41.760 on speeches for FDR. Roosevelt's speechwriters often met with Frankfurter at his Georgetown home
00:50:48.720 to collaborate. Years later, when one of FDR's main speechwriters was working on his memoirs,
00:50:55.200 he sent Frankfurter a section that included details on their collaboration when Frankfurter
00:51:00.080 was on the Supreme Court. Frankfurter wrote him back, pleading for him to add that Frankfurter, quote,
00:51:06.720 scrupulously observed the restrictions of the Supreme Bench.
00:51:12.240 Brandeis and Frankfurter both went to great lengths to try to conceal their activity
00:51:17.840 and maintain a public image that was completely ethical and upright for judges. Sometimes fostering
00:51:25.840 this image meant telling outright lies, like this response from Frankfurter to a request for help
00:51:32.560 in writing a speech for the governor of West Virginia in 1944.
00:51:36.240 I have an austere view of the position of a judge on this court, and that means I have nothing to say on
00:51:42.800 matters that come within a thousand miles of what may fairly be called politics. Frankfurter had over
00:51:50.640 300 letters that Brandeis wrote to him during the 1930s, and he refused to let them be seen even by the
00:51:57.600 Brandeis authorized biographer. He also burned hundreds of examples of his correspondence with FDR.
00:52:05.680 According to historian Bruce Allen Murphy, quote,
00:52:08.880 both Brandeis and Frankfurter seem to have been convinced first that public disclosure of their
00:52:14.480 activities would be sure to bring the court into disrepute and second that the mission of the court
00:52:21.040 could not be carried out should their own behavior be used to establish new more lenient standards
00:52:27.760 allowing more widespread extrajudicial activity by sitting members of the court.
00:52:33.120 It was now the classic case of experts giving themselves carte blanche to act outside of the
00:52:40.640 boundaries of ethics and norms because, in their own estimation, the necessity of our expertise
00:52:47.520 simply demands it. In other words, do as I say, not as I do. The die had been cast for progressives on
00:52:56.000 how to use and influence judicial power. Roe vs. Wade was almost overturned 30 years before the Supreme
00:53:06.400 Court's 2022 Dobbs v. Jackson decision. The reason it wasn't is curious in the light of the Brandeis
00:53:14.800 Frankfurter collaboration. In 1987, President Ronald Reagan nominated Robert Bork to be an associate
00:53:22.320 justice on the U.S. Supreme Court. Bork was well known in legal circles as a conservative law scholar.
00:53:29.280 He had taught at Yale Law School where Bill and Hillary Clinton were among his students. In 1982,
00:53:35.360 the U.S. Senate confirmed Bork to the U.S. Appeals Court in D.C. His nomination to the Supreme Court
00:53:42.000 should not have been controversial. But Bork was a strong defender of originalism. The judicial philosophy
00:53:49.520 that judges should interpret the Constitution as written. By the 1980s, originalism was controversial
00:53:56.640 thanks to decades of the living or flexible Constitution philosophy espoused by many progressive
00:54:04.080 disciples of Oliver Wendell Holmes Jr. Bork's nomination was quickly politicized. Here's then
00:54:12.400 Senator Ted Kennedy railing against the Bork nomination. Robert Bork's America is a land in which women
00:54:20.160 would be forced into back alley abortions. Blacks would sit at segregated lunch counters.
00:54:26.160 Rogue police could break down citizens' doors in midnight raids. And school children could not be
00:54:31.920 taught about evolution. Writers and artists would be censured at the whim of government. Notice how fear
00:54:38.240 mongering over abortion was the crux of his commentary. During Bork's Senate confirmation hearing,
00:54:45.200 an activist Harvard Law School professor named Lawrence Tribe testified against him at length.
00:54:52.560 But as a justice, Judge Bork would cast a vote that no higher court could correct. Now it's true
00:54:59.600 that he would have only one vote out of nine. But his might often be the decisive vote and even when it is
00:55:06.080 not his potential influence on the future development of constitutional law and on the role of the
00:55:13.040 Supreme Court in protecting constitutional rights would be too great to warrant confirmation if the
00:55:21.600 positions that he has long crusaded for seriously endangered the traditional role of the court as
00:55:29.200 a principal defender of liberty and equality. Famously, the Senate voted against Bork's
00:55:35.440 confirmation 58 to 42. He has been called the most qualified nominee to ever been denied confirmation.
00:55:43.200 His name became a verb. Borking refers to the kind of vicious, politically motivated character
00:55:49.920 assassination that attempts to derail a nominee for office. President Reagan was forced to nominate
00:55:56.240 one of his alternate choices, the more moderate Anthony Kennedy. After the Senate confirmed Kennedy 97 to 0,
00:56:04.960 Reagan introduced him from the White House and near the end of his remarks seemed to be reminding Kennedy
00:56:10.720 of his proper duty as justice. And so the role assigned to judges in our system was to interpret
00:56:17.920 the Constitution and lesser laws not to make them. It was to protect the integrity of the Constitution,
00:56:25.040 not to add to it or subtract from it, certainly not to rewrite it. For as the framers knew,
00:56:31.200 unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of
00:56:38.400 laws, but of men and women who are judges. And if that happens, the words of the documents that we
00:56:45.040 think govern us will be just masks for the personal and capricious rule of a small elite.
00:56:51.760 Conservatives at the time had few fears about Anthony Kennedy. He had served 13 years on the Ninth Circuit
00:56:58.240 Court of Appeals in California and emerged with a conservative reputation. The White House thought
00:57:04.320 he was a lock for voting against Roe v. Wade should the case come up. Sure enough, four years later,
00:57:11.120 the case Planned Parenthood of Southeastern Pennsylvania v. Casey arrived at the Supreme Court.
00:57:18.400 Several abortion clinics and doctors were challenging Pennsylvania's abortion law
00:57:22.640 that required informed consent and 24-hour waiting period before a woman could get an abortion.
00:57:29.760 Under this law, minors had to get the required consent of one parent, and a married woman had
00:57:36.480 to notify her husband. The question before the court was whether a state can require a woman seeking
00:57:42.880 an abortion to get informed consent and wait 24 hours without violating their supposed right to an
00:57:48.800 abortion, according to the Roe v. Wade precedent. It offered a clear opportunity for justices who
00:57:55.680 were committed to constitutional integrity to overturn the bogus abortion right that Roe v. Wade invented.
00:58:04.320 After hearing the case, but before writing opinions, Supreme Court justices meet to have an unofficial vote.
00:58:11.360 Then, after the initial opinion is written, the opinion circulates among justices,
00:58:16.480 and they have the opportunity to offer feedback and to even change their vote before the final decision is issued.
00:58:23.120 In conference, after hearing the Planned Parenthood v. Casey arguments,
00:58:27.280 Justice Anthony Kennedy voted with the 5-4 majority, which included justices Anthony Scalia,
00:58:35.040 Clarence Thomas, Byron White, and Chief Justice William Rehnquist. Rehnquist began writing the majority opinion,
00:58:42.720 which would have denied abortion as a constitutional right through Roe v. Wade. But weeks later,
00:58:49.440 Justice Kennedy sent a note to Justice Harry Blackmun that said, quote,
00:58:54.160 Dear Harry, I need to see you as soon as you have a few free moments. I want to tell you about some
00:59:00.560 developments in Planned Parenthood v. Casey, and at least part of what I should say should come as welcome news.
00:59:10.640 Justice Blackmun had written the original 1973 majority decision on Roe v. Wade. After meeting with
00:59:17.600 Justice Kennedy, he jotted on a memo pad, quote, Roe sound. In 1990, just two years after Anthony Kennedy
00:59:27.680 joined the court, he attended a judicial conference in Salzburg, Austria with the famous Harvard law
00:59:33.920 professor Lawrence Tribe, the professor who had testified so effectively against Robert Bork
00:59:40.080 during the Senate hearing. According to the Washington Post at the time, Supreme Court sources
00:59:46.080 speculated that Tribe convinced Kennedy at the conference to hire one of Tribe's former Harvard
00:59:53.200 law students as a clerk. Another of Professor Tribe's Harvard law protégés already worked as a clerk for
01:00:01.600 Justice David Souter. Souter had been appointed by George H.W. Bush. Both of these clerks had just
01:00:09.280 co-authored books with Professor Tribe, one titled Abortion, The Clash of Absolutes, the other titled
01:00:17.600 On Reading the Constitution. One academic review of Tribe's abortion book said, quote,
01:00:24.160 Tribe's only proposals are that one side's absolutes, his pro-abortion view, should be adopted and the
01:00:31.760 other side's rejected. In Planned Parenthood v. Casey, Justice Souter voted to uphold Roe v.
01:00:39.200 Wade. Then Kennedy flipped his vote and joined him. Souter and Kennedy, along with Sandra Day O'Connor,
01:00:47.360 co-wrote the new majority decision on the case. Their expansion of the so-called right to abortion
01:00:54.080 moved it from being primarily an issue of privacy to an issue of liberty under the 14th Amendment
01:01:00.320 provision that no state may deprive any persons of life, liberty, or property, making abortion an issue
01:01:07.040 of liberty also just happened to be the view espoused by Professor Tribe. Justice Anthony Scalia
01:01:16.480 reportedly drove to Kennedy's house to argue with him about this reversal, but Kennedy apparently could
01:01:22.880 not be persuaded to stick with his original stance. So why did Kennedy flip his vote? We may never know
01:01:30.720 with certainty, but the Washington Post opined at the time, quote, The reason Kennedy flipped and formed a
01:01:38.960 5-5-4 majority affirming Roe is attributed by some critics to his desire for approbation by journalistic
01:01:47.840 and legal establishments committed to judicial activism. In particular, Larry Tribe, the famous Harvard
01:01:56.720 law professor, is accused by critics of lobbying Kennedy, end quote. Now, where would a high-profile
01:02:05.680 Harvard law professor get a road map for the judicial activism that could be accomplished when a law expert
01:02:13.200 collaborates with a sitting Supreme Court justice? Louis Brandeis, Felix Frankfurter. They were the true
01:02:21.280 trailblazers of left-wing activism in the law. Sometimes, history shows its prankster side. The year after
01:02:30.640 the Casey decision upheld and reinforced Roe v. Wade, Justice Anthony Kennedy got a new law clerk,
01:02:37.840 a Yale Law School graduate named Brett Kavanaugh. 25 years later, Kennedy announced his retirement from
01:02:45.440 the Supreme Court, and Kavanaugh was nominated to replace him. Kavanaugh, of course, would go on to be
01:02:53.440 borked in grotesque fashion by Senate Democrats at his Supreme Court confirmation hearing. Almost four
01:03:01.360 years later, the Supreme Court insider, who leaked the Dobbs opinion draft, also revealed to Politico
01:03:08.800 that Kavanaugh had voted with the majority to overturn Roe v. Wade. And that's what led that deranged
01:03:17.360 trial by the Supreme Court. And that's what led by Kavanaugh. And that's what led by Kavanaugh's
01:03:21.520 house in the middle of the night. For months, speculation swirled about who leaked the draft
01:03:27.520 opinion. Supreme Court Justice John Roberts ordered an official investigation that was led by the marshal of
01:03:34.240 the court, Gail Curley. In January 2023, more than eight months after the leak, Curley finally released
01:03:42.240 her report, which turned up nothing. The investigation did not identify the person responsible for the leak.
01:03:50.560 Curley interviewed 82 Supreme Court employees who had access to the draft opinion written by Justice
01:03:56.800 Samuel Alito, and all 82 employees had to sign a sworn affidavit on penalty of criminal prosecution
01:04:03.760 if they were found to be lying. Investigators access call and text message logs from all the employees'
01:04:10.560 personal cell phones. They combed through computer search histories and printer logs. And after all of
01:04:17.120 that effort, the report concluded that none of them were behind the leak. But there was one curious
01:04:24.400 omission from the report. The nine Supreme Court justices were not subjected to the same scrutiny
01:04:32.240 as these other 82 personnel. The omission was odd enough that a follow-up statement was released the day
01:04:40.000 after the report came out, in which the head of the investigation, Gail Curley, said, quote,
01:04:46.160 During the course of the investigation, I spoke with each of the justices, several on multiple occasions.
01:04:53.120 The justices actively cooperated in this iterative process, asking questions and answering mine.
01:05:00.160 I followed up on all credible leads, none of which implicated the justices or their spouses.
01:05:05.840 On this basis, I didn't believe that it was necessary to ask the justices to sign sworn affidavits.
01:05:13.200 But considering the track record of elite expertise and left-wing activism in our judicial system,
01:05:20.720 maybe she should have.
01:05:22.160 We constantly rely on experts to make decisions for us.
01:05:27.360 Because even eyewitnesses and experts can get it wrong.
01:05:30.880 But experts do get things wrong.
01:05:32.880 You have to seek out sources from other points of view,
01:05:36.560 and then critically examine their motivations and credibility as well.