Democrats, Supreme Court and Senate discussed on KNX Programming
Hardball if they win back the White House and achieve a Senate majority in the twenty twenty election threatening to expand the size of the supreme court and add liberal justices. Don't count on. It writes Jonathan Bernstein, a columnist for Bloomberg opinion, and here to tell us, why don't the Democrats are looking for ways to cut the conservative majority on the supreme court and raising the number of justices upwards from nine is one way. Explain how that happens under law. Well, what the Democrats would have to do. And we're talking about in the future when they. Hypothetically have unified democratic government a democratic president and majority in the house and Senate what they would need to do is pass a law changing the size of the court. That's been done in the past. It's doable. It's constitutional. They'd have to have a Bill that passed the house passed the Senate gets resident signature, it probably would need to defeat a Republican filibuster in the Senate, it probably can't be done through the special procedure called reconciliation, which allows it to go with only simple authority. So you'd probably have to get sixty votes or the Democrats would also have to change the procedure on the Senate Franklin Roosevelt tried this and he failed who has succeeded in doing this. Why did he fell in the nineteenth century? It actually changed a bunch of different times. Then it got set at mine. More or less permanently since eighteen sixty nine Roosevelt try to nineteen thirty seven because despite having huge. Democratic majorities making thirty to thirty four and thirty six elections. The supreme court started tossing out new deal legislation was unconstitutional. So the Democrats Roosevelt committed a Bill congress to change that what happened was that? It turned out to be very controversial extremely controversial did not pet congress. However, one of the supreme court justices split and started voting for new deal measures and soon after that a couple of the older conservative anti new deal. Sprinkler justices retired and Roosevelt was able to fill those slots and ever since then, you know, the basic up till grabs what's going to happen in the future. But the basic contours of the new deal were constitutionally, okay with the supreme court. So you write that some Democrats will argue that everything else, they do is useless until the court changes. So what would stop? Them from trying this. Well, first of all, it's hard to do if you can't do it through reconciliation. That means you're going to need either sixty votes in the Senate, which Democrats don't seem to have any foreseeable future. Or you need to change the rules of the Senate. They could do that. But if you only have fifty one fifty two fifty three democratic senators, it'll be difficult, even if you could do it with a bare majority it's not clear that a fifty one or fifty two Senator majority slim Senate majority won't be able to get it through because it'll be unpopular people will say you're trying to change the rules of the game. So there's all the other thing is that some Democrats will argue, well, why should we mess with this procedural stuff when we have important substantive bills to pass we have important substantive bills on healthcare and climate and voting rights that at the top of the gender that a lot of democratic constituencies are very adamant that. That's past when they have a chance, you know, changing the size of the court sort of, you know, a Bank shot. This will protect us in case things get knocked out. So at least at first it doesn't seem like it would be the number one priority. How are the supreme court's decisions over the next few years going to play in here? In other words, if the court is conservative, but is not aggressive about being conservative will that make it less likely that Democrats will try this exactly, you know, the supreme court people say well supreme court somewhat follows the election returns, they may or they may not. Democrats. Let's say have a good election in three weeks. And then when the presidency solidly in twenty twenty with taking unified control congress if the supreme court insists on. Very aggressive with Republican interpretations conservative interpretations of the constitution. If they start knocking out ObamaCare they knock out, you know, they could go far further. They could invalidate a whole lot of great society and new deal. They could also go after anything new any new Democratic Congress passes. If they start doing that, then Democrats will be more and more drawn to the argument. Hey, we can't do anything unless we change the supreme court on the other hand there is some possibility that Justice, especially chief Justice Roberts may follow the election turns and say, well, we're going to certainly produce conservative results. But we're not going to go out of our way to throw out, you know, lots of laws we're not going to be an aggressive activist courts. And we just don't know yet what the court will wind up doing. Thank you Jonathan. That's Jonathan Bernstein. A columnist for Bloomberg opinion coming up on. On Bloomberg opinion. A look at the serious.