Why is Constitutional or Supreme Court change hard?

Since the US President has no direct authority over either matter, it is extremely difficult to amend the US Constitution and not especially easier to adjust the number of justices on the Supreme Court.

“Amending the Constitution is a complexity that makes no sense,” states right immediately Élisabeth Vallet, director of the Raoul-Dandurand Chair’s Geopolitics Observatory. This complexity has an explanation. The Constitution serves as the cornerstone of any political system. It needs to be sustainable and unable to change over time, she says.

“In order to discourage anyone from constantly amending the Constitution, the founding fathers intended it to be difficult to amend. And so that this foundational text would no longer resemble anything from election to election,” explains Karine Prémont, a professor at the University of Sherbrooke’s School of Applied Politics.

“When we decide to change the Constitution, it really has to be because everyone says: ‘OK, the social contract doesn’t work, the constitutional contract doesn’t work, we need to amend something,'” continues Mᵐᵉ Vallet, who also contributes a column to Le Devoir.

Two possible methods

After all, how can the Constitution be amended when public opinion has shifted to the point where ratification is unanimous? In principle, there are two steps involved. One originates from a congressional initiative, while the other is the result of a convention called for by two thirds of the states.

According to Christophe Cloutier-Roy, deputy director of the Raoul-Dandurand Chair’s Observatory on the United States, “that’s basically what we’re talking about, since only the first one was used in the 27 amendments that were adopted.”

“First adopted as a bill in Congress,” he stated, was the suggestion. Then, it must be approved by both chambers of Congress with a two-thirds majority. “That alone is quite difficult given the current degree of polarization in the United States.”

The law must be approved by three-quarters of state legislatures, or 38 out of 50, in order to proceed to the ratification process.

“Once more, considering the significant political differences that may exist throughout the many states, it is highly challenging. Mr. Cloutier-Roy emphasizes, “Especially since there can be very strong consequences when amending the Constitution.”

“Even if the possibility exists, it is difficult to see what sort of issues could sufficiently unite Democrats and Republicans from one end of the country to the other for an amendment procedure to be adopted,” the researcher says, given the current political climate in the United States.

Modify the Supreme Court’s membership

The Supreme Court now has nine justices; if Kamala Harris were elected president of the United States, she would not be able to alter this number. Congress is once more in charge of it, and it can do so by enacting laws.

“The president would then have to ratify this legislation. However, neither Donald Trump nor Kamala Harris can declare, “I will increase the number of judges from so much to so much,” according to Karine Prémont.

In an effort to buck the recent trend, some Democrats are running for office with the goal of increasing the number of judges on the nation’s highest court. Due to Donald Trump’s significant changes to this legal temple, half of the six conservative judges were nominated during the Republican’s administration.

What Kamala Harris could do, in the words of Christophe Cloutier-Roy, “concretely” to guarantee that the Democrats’ wish for a shift in the Supreme Court’s makeup is realized is “to take a public position so that Congress adopts a law that goes in this direction.”

The expert emphasizes that “she would have her usual powers”—that is, “appointing the judges who will occupy the new seats then created”—if this occurred during a Kamala Harris presidential term.

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