The Next Declaration of Independence

Rising up against judicial tyranny

Not all the MAGA Supreme Court majority decisions this term are as morally and legally defective as Dred Scott.

That’s perhaps the most pathetic but accurate defense of the handiwork of a court that has entirely forfeited its credibility as a nonpartisan judicial body. Its reputation is in tatters, certain to decline further as it removes any lingering doubt as to its affiliation with the failing MAGA movement and antipathy toward modern pluralistic America.

Given its string of outrageous rulings, the public certainly does not believe our highest court is acting on the up and up. “[T]he Supreme Court is facing a crisis of confidence,” the Brennan Center explained in an April report on the collapse of the court’s credibility. “Americans’ favorable views of the Court hover at historic lows. Polling shows that only 22 percent of voters have a ‘great deal’ or ‘quite a bit’ of confidence in the Court.”

While the MAGA majority does not trample on precedent in every single case, it does engage in bad faith reasoning to justify preordained outcomes, misstate facts, misrepresent the issue before it, make hash of critical historical context, express animus toward political opponents, cause fundamental damage to the constitutional structure of our system, and aggrandize power to itself at the expense of the other branches. How much longer must the American people tolerate — as the Declaration of Independence phrased it — “a long train of abuses and usurpations. . . . design[ed] to reduce them under absolute Despotism?”

Frankly, we should be stunned that the most extreme, a-historic positions that would never have passed the straight-face test a few years back now come within a whisker of garnering 5 votes. “That some of those positions [like in the mail-in ballots case] were too extreme for the ‘middle’ of the Court doesn’t somehow prove that the Court is, in fact, ‘moderate’; it just suggests that, for as emboldened as right-wing litigants have become, the Court isn’t all the way there yet,” Steve Vladeck wrote this week. “That’s an important narrative, but it’s not one for which the justices deserve a participation trophy.”

To the contrary, the accelerating drift into judicial authoritarianism should serve as a shrieking siren: If the MAGA majority is allowed to continue down this road, all semblance of honest jurisprudence and respect for the right of the people to make ideological assessments and policy choices will vanish.

With arrogance typical of any thin-skinned despot, the MAGA justices think the problem is pesky critics calling attention to the court’s self-made credibility crisis, rather than their own insistence on imposing right-wing crackpottery on the country under the guise of legitimate constitutional interpretation. Simply because the robed MAGA partisans deign to allow us to keep a few crumbs of our liberty — the explicit guarantee of birthright citizenship, the right to count all votes cast when states deem it appropriate, the ability to maintain a central bank insulated from whims of a corrupt president, congressional authority over the power to lay tariffs (again, spelled out in the Constitution) — does not mean we are obliged to endure serial constitutional outrages.

We are reaching the point of no return, which nicely aligns with the inflection point 250 years ago that inspired the Declaration of Independence’s indictment of the tyrannical excesses of King George III. The principles enunciated in our founding document apply whether the villain is an English monarch or a judicial majority. When either becomes destructive of the ends of freedom, the people are obliged to act.

As with King George, the current MAGA majority deserves at least a partial listing of the wrongs justifying a dramatic alteration in our government:

It eviscerated a 50-year precedent establishing women’s bodily autonomy, a fundamental component of full citizenship;

It reimposed Jim Crow in violation of the unequivocal text of the Voting Rights Act and in violation of the plain reading of the 14^th and 15^th Amendments, which empower Congress to implement the post-Civil War amendments’ promises of equality;

It doled out virtual blanket criminal immunity to Donald Trump, directly contradicting the historical and constitutional framework on which the country was founded;

It inhumanely stripped the protected status and all due process rights from hundreds of thousands of refugees whose deportation could result in torture, persecution, untold hardship, and even death;

It cooked up in the chaos-producing Slaughter decision, wiping out 90 year precedent (Humphrey’s Executor) that allowed “certain agencies tasked with certain responsibilities some independence from presidential control,” as Justice Sonia Sotomayor wrote, a decision so lacking in intellectual rigor that Justice Amy Coney Barrett was left to bemoan that the exception carved out of thin air for the Federal Reserve made no sense: “How can history support both a categorical rule and a carve-out?”;

Justices repeatedly failed to comply with financial disclosure requirements, received lavish gifts from parties with interests in business before the court, and refused to adopt mandatory ethical guidelines, including rules for recusal that all other federal court judges must follow;

Justices have made a variety of remarks in public settings evidencing bias against political liberalism and castigating good faith critics of the court in highly partisan and personal terms;

Justices have declined to recuse themselves to avoid the appearance of glaring impropriety stemming from spouses’ overt engagement in political extremism.

Whether you think the current situation is simply classic corruption (i.e., capture of the court by massive corporate interests under the tutelage of dark money impresario Leonard Leo) or part of an ongoing white Christian Nationalist crusade to roll back the entire post-Reconstruction era, we undoubtedly face a standoff. On one hand, we have elite power determined to impose — by anti-democratic means — a peculiar vision of America unacceptable to most Americans. On the other hand, we have those who adhere to the commitment to self-government that was articulated 250 years ago.

Fortunately, the current confrontation between democratic self-government and judicial tyranny, as acute as it has become, does not require a violent revolution. We have the means to inform the country, compile a bold array of reforms, and push for their enactment with a Democratic president and congressional majorities in 2029. We have within our grasp the power to return the court to its constitutionally assigned role, and to reassert Americans’ responsibility for self-rule.

It will require assembling a robust, comprehensive package with attainable limitations. They include stringent ethical guardrails, term limits, court expansion, restrictions on the shadow docket, fast-tracked congressional votes to override erroneous statutory interpretation, radical transparency (including FOIA application to Supreme Court documentation), rolled back jurisdiction to prevent second guessing technical administrative rulemaking — the so-called major questions doctrine — for which the court lacks technical/scientific expertise, and restoration of Bivens, which allowed victims of governmental abuse to pursue civil remedies.

After a court term punctuated by outlandish attacks and instances of childish, injudicious conduct, no time can be spent twiddling our thumbs while our democracy burns. The timing is ideal for a Declaration of Independence from Judicial Tyranny and a new chapter in our quest for a more perfect nation.

Have a safe and joyful Independence Day, as we prepare to embark together on the next 250 years of the American experiment in self-government.