Trump drops SHOCK Supreme Court ANNOUNCEMENT

You're watching the Legal Breakdown, Glenn. We have a bombshell update at the. US Supreme Court. Can you explain the. announcement that they just made about. resurrecting something that Donald Trump. had initially lost on? >> Yeah, Brian, the Trump administration. has put everybody on notice. They're. filing what's called a petition for. reconsideration with the Supreme Court. In other words, they're saying, "Regarding your decision that the. Constitution says what it says, that if. you're born here, you're a citizen here, which is expressly laid out in the text.

of the Constitution, they want the. Supreme Court to change its mind and. say, 'Whoops, our bad, you're really not. a citizen if you're born here.' The. technical term for what they're asking. the court to do is accept the case for. review on a petition for. reconsideration, which is permitted. under the Supreme Court Rules of. Procedure. We'll talk more about that in. a minute. But, let's go right to the. substance. What is the likelihood that. this will be successful and they'll get.

the Supreme Court to hear this case all. over again and change its mind? I would. say, you know, this is like a Hail Mary. pass. Problem is, there's nobody. standing in the end zone to catch this. Hail Mary pass. This thing, I predict, will go down in flames. But, the Supreme. Court, I know, we are always leaving it. as an open question with whether, you. know, the kind of radical right-wing. six-justice majority will perhaps be. willing to take a second look at what.

the 14th Amendment says about birthright. citizenship and change their minds, but. I think it is extraordinarily. unlikely. We can talk a little bit about. the history of these kinds of petitions. for reconsideration before the Supreme. Court. And let me just say, they have. not fared well. They have almost never. been successful. But, for anybody. scoring at home, it's Rule 44 of the. Supreme Court rules of procedure that. say a losing party can petition can ask.

the court to hear the case all over. again if quote intervening circumstances. of a substantial or controlling nature. are present. That's the first basis. In. other words, you know what? In the. interim. um the Constitution was amended and the. language of the 14th Amendment no longer. provides for birthright citizenship. That would satisfy rule 44's.

requirement. I mean, I know that's a. foolish example because we know that. hasn't happened. The other clause that. would allow them or give them at least. the ability to accept the petition for. reconsideration is if a some other quote. substantial grounds not previously. presented are somehow now in the mix. And the answer is there aren't any. And. I don't think it satisfies that part of. rule 44. I know I'm turning this into a.

legal breakdown a law school class, but. if everybody will bear with me I don't. think you can satisfy that by pointing. to the fact that the Solicitor General. John Sauer a couple of times was caught. flat-footed when the justices asked him. a question and he actually would say. things like huh, I hadn't thought of. that. Well, you know what sport? It's. kind of your job to have thought of that. in advance. But that's not going to. satisfy rule 44 either. And you know, let me at the risk of going on too long.

answering your initial question. The. last time the Supreme Court accepted. something for reconsideration was 1965. What is that? 61 years ago if I've got my math right. And interestingly. that was only because there was some. technical change the Supreme Court. wanted to make to its ruling so that. when they sent it back to the lower. courts, they they would have enough. guidance to go about implementing it. They did not change their decision in.

that 1965 case. As best I could tell. doing some down and dirty legal. research, they have only fully reversed. themselves once since the court was. created in 1789. And if anybody's interested, it was a. case involving this sounds like a. made-for-TV movie. It was a case. involving a wife who murdered her. husband. Her husband was an active-duty. military member serving overseas. And. originally, the Supreme Court said,

"Yeah, we think it's kosher to. court-martial the wife." But the wife. was not a military member, and. court-martials only have jurisdiction. over military members. That is the one. and only case in which they accepted a. petition for reconsideration, and they. reversed themselves because because they. got the original ruling horrifically. wrong. I haven't had an opportunity to. go read all of the hundreds of pages. that make up those rulings. That was the. one and only time they have actually.

reversed a case. And then to finish the. thought, it looks like even though. record-keeping has not been perfect. regarding Supreme Court practice since. the late 1700s, it looks like there are. fewer than 10 cases where they've even. accepted a petition for reconsideration. So, I'm going to go out on a limb here. and say this will be dead in the water. the minute it arrives at the US Supreme. Court. >> I want to ask more questions, Glenn, about exactly this. But just a quick. note for those who are watching right. now. If you'd like to support my work, I've got a new book coming out called.

The Day After: How to Wield Power in a. Post-Trump World. We're seeing right now. the extent to which Donald Trump is. wielding power as aggressively as he. can. I argue that Democrats need to do. it for virtuous reasons. That book is going to be available for. pre-order right now, so I'm going to put. the link right here on the screen and. also in the post description. And if you. live in DC, New York, or LA, I'd love to. see you on my book tour. There's still. tickets available. So, all of that is. available at the same link or you can go. to briantylercohen.com/book. Glenn, when Donald Trump put forward.

this motion for reconsideration, did he. have to say on what grounds he thought. that it should be re- reconsidered? >> No, you know, Donald Trump has been. bellowing in the public square about. filing this thing, but we haven't. actually seen a filing yet. The The. window for petitioning the court, filing. the paperwork, putting the court on. notice that they're going to seek. reconsideration is very narrow. So, they. have 25 days from the time the Supreme. Court handed down its ruling in the. birthright citizenship case, which it.

was June 30th. They have until July 25th. to file their notice. And at that point, it's a little bit of an open question as. to whether they are expected to file a. full brief or simply summary notice. saying, "Hey, Supreme Court, this is. notice that we're going to be filing. something and we want you to change your. mind." But, Brian, can I just quote a. little bit of what Chief Justice Roberts. said when he authored the birthright. citizenship opinion, and folks will. probably remember the vote was 6 to 3. So, some might say, "You know, it wasn't.

even close." Now, Kavanaugh played some. games with respect to why he was joining. the majority opinion, but the fact. remains it was a 6-3 opinion from the. Supreme Court. And here is a little bit. of what Chief Justice Roberts said, writing for the majority, he said that. children born of parents, even if they. are unlawfully or temporarily present in. the United States, satisfy both elements. of the citizenship clause, and under the. Constitution, they are citizens at.

birth. Period. Do we really expect Chief. Justice Roberts and the five other. justices who joined that opinion to say. Oh, my bad. Our bad. We got that wrong. We're going to go ahead and flip the. script and say the 14th Amendment really. doesn't say what it expressly says. Again, I don't think so. >> And I think that's an important part to. bring up, too, because. look,

birthright citizenship is in the plain. text of the Constitution. And so, what. does it say that sure. not all the conservative justices. decided to rewrite the Constitution. indefinite to Trump, but between three. and four of them, depending on you know, the the how narrow the response was, between three and four of them were. willing to do so. Isn't that unto itself. a massive blinking red light? >> It is a massive blinking red light. The. problem is, Brian, that red light has. been blaring ever since Alito and Thomas.

have made it known that they do not give. a rat's ass. That's a legal term, at. least in New Jersey. They don't give a. rat's ass about the express text of the. Constitution after spending their. careers trying to dupe us into believing. that they are textualists. They're. guided by the express text of the. Constitution. Oh, So, listen, 7-2 is pretty much the only thing we.

have come to hope for in any. consequential constitutional opinion. from the Supreme Court. And I think they. pulled Gorsuch over to the dark side, and that accounts for the three in the. 6-3 Supreme Court split. But, you know, the best we have been able to hope for. is seven justices in the majority when. they're, you know, just abiding by the. express text of the Constitution. Um, but but I still think with all of that. said, um, we're going to survive.

Donald Trump's term, hopefully, without. too much additional damage to the. Constitution. And then, Brian, if all of. this does not motivate us and motivate. all of Washington, I would argue. including some of the Republicans to. engage in real Supreme Court reform, well, then shame on us. Maybe we don't. deserve to keep our republic if we're. not willing to fight for it, not just in. the executive branch and not just in the. legislative branch, but in the damn. judicial branch where we need honest.

brokers of the law and the Constitution. on the Supreme Court. So, as far as I'm. concerned, this should just motivate us. to fight even harder for, you know, non-negotiable Supreme Court reform. >> Yeah, and in fact, not to myself. out too much, but one of the main theses. of this book is that we need to seek. Supreme Court reform, that we need an. expansion of the Supreme Court. There is. a historical argument to do so. The. number of Supreme Court justices has. always comported with the number of. federal court circuits. Back in the.

1800s, there were six federal court. circuits, there were six Supreme Court. justices. Eventually, that number went. up to nine. Now, we have 13 federal. court circuits, and we still have. nine Supreme Court justices. And in. fact, that number is so not sacrosanct. that not only is it not in the. Constitution, but Republicans in modern. times have altered the number. Mitch. McConnell spent a year bringing that. number down from nine to eight because. he needed to keep Merrick Garland off. the court. So again, not a sacrosanct. number. And finally, the moral reason.

that we should do this is. even if Democrats are able to gain a. majority in the House, the Senate, and. the White House, a pretty big Herculean. feat unto itself, and pass progressive. legislation, another Herculean feat unto. itself, then if we decide to leave in. place this 6-3 conservative court, we're. basically saying that we're fine with. any legislation that we pass being. vetoed as soon as it gets in front of. the court. This is a court that has. struck down abortion rights, it's a. court that struck down voting rights. They will strike down anything that. doesn't comport with their political.

ideology. So, the question becomes, are. we okay with just getting caught trying? Are we okay with just symbolic victories. that we know are going to be struck down. as soon as it gets in front of the. Supreme Court? Or, do we want. meaningful, lasting change? And if it's. the latter, then we have to expand the. court because otherwise, we're basically. saying that we're fine leaving this veto. in place. >> And Brian, can I just put an exclamation. point on the numbers that you just. recited with respect to how many. justices have been on the Supreme Court, you know, during the existence of the.

Supreme Court? And not that I'm a book. salesman or I'm getting a cut of the. proceeds of your book, but I've read. your book, which is titled The Day. After, and I just let that wash over me. because there will be a day after Trump. But you know what? We're not going to be. able to rest for more than about 24. hours. Then we have to stand up and. fight for things like Supreme Court. reform. But even, you know, apart from. Mitch McConnell de facto reducing the. number of Supreme Court justices by one. down to eight because he wouldn't give.

Barack Obama's nominee, Merrick Garland, a a confirmation hearing. In our. nation's history, we have had formally. as few as five Supreme Court justices, as many as 10 Supreme Court justices. Nine is not a magic number, nor is it. contained in the Constitution. And we. have raised the number of federal trial. court judges to norm for the increased. population and the increased caseload. The you know, the federal bench caseload. that comes with the increased. population. We have increased the number.

of circuit courts of appeal judges and. circuits. Indeed, we're up to 13. circuits, and it's supposed to be that. one Supreme Court justice has some. supervisory authority over one federal. district. We now have 13, so some are. having to double up. It makes sense for. every reason that we raise the the. number of Supreme Court justices to 13. It only makes sense, and we have to, you. know, have the nerve, have the fortitude. to stand up and fight for that.

regardless of how it may be. mischaracterized. by the people who are happy with the way. the Supreme Court has performing for. Donald Trump. >> Perfect place to leave off. For those. who are watching right now, if you'd. like to stay on top of this news as it. relates to the Supreme Court and the. potential for a birthright citizenship. case being reconsidered, please make. sure to subscribe. I'm going to put the. link to Glenn's channel right here on. the screen and I'm going to put the link. to pre-order the book or grab tickets to. the book tour right on the screen as. well. So make sure you hit both of those. links. I'm Brian Tyler Cohen.

>> And I'm Glenn Kirschner. >> You're watching the legal breakdown. >> [music].