Photo: Chip Somodevilla Agence France-Presse The number of justices sitting on the Supreme Court of the United States is currently nine.
Léo Mercier-Ross
Published at 12:00 am
- United States
< /ul>
In this column from the American Election Mail, our journalists answer questions from our readers. To subscribe, click here.
During the 1970s, there was an attempt to insert equality between women and men into the American Constitution. It was a failure. What are the rules to follow to amend the Constitution ?
— Gilles Gougeon
My question may be naive, but if Kamala Harris were elected, what powers would she have to change the current composition of the Supreme Court ?
— Louise Nepveu
It is very difficult to amend the American Constitution, and it is not particularly simpler to change the number of justices sitting on the Supreme Court, since the President of the United States does not have direct power over these two aspects.
Amending the Constitution is “complex beyond common sense,” Élisabeth Vallet, director of the Raoul-Dandurand Chair’s Geopolitics Observatory, tells us straight away. There is a reason behind this complexity. “For any political regime, the Constitution is the foundation. It must not be able to change over time and it must be sustainable,” she explains.
“The founding fathers wanted it to be difficult to amend the Constitution to prevent anyone, at any time, from changing it all the time. And to prevent this founding document from looking like nothing from one election to the next,” illustrates Karine Prémont, professor at the School of Applied Politics at the University of Sherbrooke.
Mᵐᵉ Vallet, who also writes a column in Le Devoir, adds: “When we decide to change the Constitution, it really has to be because everyone is saying, 'OK, the social contract isn't working, the constitutional contract isn't working, we need to amend something.'” »
Two potential procedures
But then, how to amend the Constitution when the spirit of the times has changed enough and everyone agrees to ratify it? There are, in theory, two procedures. The first comes from a proposal by Congress, the other comes from a convention requested by two-thirds of the states.
200% Deposit Bonus up to €3,000 180% First Deposit Bonus up to $20,000“In fact, only the first one was used in the 27 amendments that were adopted, so that's essentially what we're talking about,” notes Christophe Cloutier-Roy, deputy director of the Raoul-Dandurand Chair's Observatory on the United States.
The proposal is “first adopted in the form of a bill in Congress,” he specifies. It must then be adopted by two-thirds in both houses of Congress. “That alone is quite difficult given the current degree of polarization in the United States. »
If the proposal is adopted, a ratification process follows, during which it is necessary to collect the approval of three-quarters of the state legislatures, or 38 out of 50.
“Again, it’s quite difficult given the huge political disparities that can exist between different states. All the more so since there could be very strong consequences when amending the Constitution,” Mr. Cloutier-Roy emphasizes.
In the current political context of the United States, “even if the possibility exists, it is difficult to see what kinds 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 summarizes.
Changing the composition of the Supreme Court
If Kamala Harris were to become President of the United States, she would not obtain the power to change the number of justices sitting on the Supreme Court, which currently stands at nine. This again comes down to Congress, which can do this by passing a law.
“Then it would be up to the president to ratify this bill. But Kamala Harris or Donald Trump cannot say: 'I will increase the number of judges from so much to so much,'” says Karine Prémont.
In the Democratic camp, some are campaigning for an increase in the number of judges on the highest court in the country, which would counterbalance the trend of recent years. Because this temple of law has been profoundly reworked by Donald Trump: of the six conservative judges, half were appointed during the Republican's term.
According to Christophe Cloutier-Roy, what Kamala Harris could do “concretely” to help ensure that the Democrats' desire to see a change in the composition of the Supreme Court is fulfilled is “to take a public position so that Congress adopts a law that goes in this direction.”
If this happened during a Kamala Harris presidential term, “she would have her usual powers,” that is to say, that of “appointing the judges who will occupy the new seats then created,” the expert emphasizes.