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We Can’t Reform the Supreme Court, But We Can Replace It
The Supreme Court has lost all credibility. Not that long ago, when there was a slim liberal majority (depending on Justice Anthony Kennedy’s whims), conservatives complained that the court was “legislating from the bench.” Today, the Roberts court enjoys a solid conservative majority, either six to three or five to four, depending on how Chief Justice Roberts votes. Five of the justices were nominated by presidents who lost the popular vote; John Roberts and Samuel Alito in George W. Bush’s second term, and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett by Donald Trump. While Bush did win the popular vote in his second term, it’s unlikely he would have been renominated in 2004 had he not won the presidency in 2000 when he lost the popular vote to Al Gore. Gorsuch owes his seat to Senate Majority Leader Mitch McConnell refusing to hold hearings for nearly a year, when Barack Obama nominated Merrick Garland to fill Antonin Scalia’s seat after Scalia died in February of 2016; this allowed Trump the opportunity to nominate Gorsuch in January of 2017. The conservatives have “won” in the sense that they dominate the court completely, but at the cost of a great loss of confidence in the court’s credibility as an institution.
There have been calls to reform the court; the easiest would be for Congress to increase the number of justices. The number…
