US Supreme Court Faces Crisis of Incoherence as Calls for Reform Intensify

The Breakdown of Judicial Language

The Supreme Court's current term, which concluded during America's 250th birthday celebrations, revealed a Court struggling to articulate a coherent constitutional vision. According to Ian Millhiser, senior correspondent at Vox, the Court's work has become "increasingly illegible" to people who do not share the Republican justices' values.

The Second Amendment Maze

Perhaps no area better illustrates the incoherence than the Court's Second Amendment jurisprudence. In *Bruen* (2022), the Court created a new test requiring judges to ask whether modern gun laws are "relevantly similar" to laws from the 18th century. The result has been chaos. In *United States v. Rahimi* (2024), the Court upheld a ban on gun possession by domestic abusers by comparing it to founding-era laws requiring "peace bonds." Yet in *Wolford v. Lopez* (2026), the Court struck down a Hawaii law nearly identical to 18th-century statutes, claiming those old laws were about preventing poaching, not public safety.

The Alitoification of Moderate Justices

Justice Brett Kavanaugh, once viewed as a potential moderate conservative, has made a sharp rightward turn. After authoring an opinion suggesting ethnicity is a "relevant factor" in police stops and voting against striking down tariffs, Kavanaugh joined an opinion claiming birthright citizenship — enshrined in the 14th Amendment since 1868 — may no longer be constitutionally guaranteed due to "new circumstances" like illegal immigration.

The Major Questions Doctrine Mystery

The "major questions doctrine" — a legal theory used to block Biden administration actions — has never been clearly explained by the Court. Republican justices first articulated it in 2014 but have never applied it against a Republican president, though they split 3-3 on applying it to Trump in *Learning Resources v. Trump* (2026).

Calls for Structural Reform

In response to these trends, prominent voices are calling for reform. Elie Mystal, justice correspondent for *The Nation*, argues in a Guardian podcast that "court reforms to rein in that power aren't just constitutional — they're necessary."

Brian Tyler Cohen, author of *The Day After* (releasing July 14, 2026), makes the case for Supreme Court expansion explicitly: "If the current 6-3 Court isn't bad enough, we may be saddled with an even more entrenched conservative court in short order" with Justice Alito (76), Chief Justice Roberts (71), and Justice Thomas (77) at retirement age.

Cohen argues that even if Democrats win the White House, House, and Senate in 2028, any progressive legislation will be struck down by the conservative Court unless structural reforms are implemented. Former Vice President Kamala Harris has also joined the chorus, suggesting "the idea of Supreme Court reform, which includes expanding the Supreme Court" should be part of an "expanded playbook."

The Risk of Retaliation

Legal scholars warn that the Court's illegibility makes it vulnerable. When the Court cannot explain its decisions, and when justices abandon long-held principles without explanation, those decisions become fragile. Richard Re of Harvard Law Review noted that America's "two competing legal cultures" have diverged so dramatically that lawyers on opposite sides no longer speak the same legal language.

What is the "shadow docket" and why is it controversial?

The shadow docket refers to emergency orders and other decisions the Supreme Court makes on an expedited basis without full briefing or oral argument. Before Trump became president, the Court rarely used this mechanism and typically provided lengthy explanations. Today, it frequently hands down transformative rulings with little to no explanation, making it impossible for lawyers and lower courts to understand the reasoning.

What is Supreme Court expansion?

Court expansion refers to increasing the number of justices on the Supreme Court beyond the current nine. Congress has the power to change the size of the Court by statute. Proponents argue it would allow a Democratic president to counterbalance the current 6-3 conservative supermajority, while critics warn it could trigger a cycle of partisan retaliation.

How does the current Court differ from previous conservative Courts?

Previous conservative Courts, while ideologically right-leaning, featured "swing justices" like Kennedy and O'Connor who forced both sides to adopt common legal reasoning. The current Court has no such moderating force, resulting in decisions that often appear arbitrary and incomprehensible even to legal professionals.

What is substantive due process and why has its use changed?

Substantive due process is the legal theory that certain rights are so fundamental that no amount of government process can take them away. Republicans long opposed it as a "dangerous fiction" used to justify *Roe v. Wade*. However, the current conservative majority has now embraced it to require teachers to out transgender students to parents (*Mirabelli v. Bonta*, 2026), abandoning their previous stance.

The Supreme Court's legitimacy crisis raises profound questions about the future of American democracy. Do you believe the Court can restore its credibility, or is structural reform — including expansion — the only path forward? Share your thoughts on Twitter/X, LinkedIn, or Reddit using the buttons below.

Do you think the current Supreme Court can be fixed from within, or do its problems require external reforms like expansion or term limits? Let us know!

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