The sleeper referendum that could reshape the national judiciary
By Maya Ellison · Reporting from Detroit ·
The rot isn’t in the chambers of law; it’s in the architecture of power itself.
When Judicial Power Becomes a Private Commodity
The rot isn’t in the chambers of law; it’s in the architecture of power itself. We are watching, live and breathless, the slow dismantling of foundational American rights, first by partisan appointments at the federal level and then through state-by-state rollbacks that feel eerily familiar. The Supreme Court—the supposed bastion of objective law—is failing its mandate. As brennancenter.org reports, public confidence in the Court has plummeted to all-time lows. Meanwhile, the concentration of power is staggering: Republicans have established a supermajority by appointing six justices, and the last chief justice appointed by a Democrat took office back in 1946. This isn't just political disagreement; it’s an institutional crisis where unaccountable people are making rules for a democracy, as Justice Elena Kagan herself pointed out.
The Shadow Docket and State-Level Retreats
The abuse is systemic. Consider the shadow docket: As of March 2026, the second Trump administration has asked the Court to intervene 34 times, resulting in 25 decisions where it ruled in the administration’s favor 80 percent of the time. The use of this mechanism—like allowing a president to fire members of independent agencies in Trump v. Wilcox—bypasses necessary checks and balances, frustrating the very principle that courts are supposed to explain things, as Kagan noted.
The rot spreads down to the states. According to statecourtreport.org, state supreme court elections are now battlegrounds for rights protection. In Montana, a Republican leader complains the court is "one of the most liberal courts in the nation," even as that same court issues decisions striking down abortion limits and restrictive voting laws. Arizona voters responded to an 1864 abortion ban by amending their constitution to codify a right to abortion—a direct act of democratic resistance against judicial overreach.
The Ghost of Reconstruction Haunts Modern Reform Efforts
The pattern is undeniable: when the legal framework fails to reconcile fundamental shifts in social power and rights, the system buckles under pressure. This isn't new. When slavery was abolished, the challenge wasn't merely political; it required a complete redefinition of citizenship and constitutional boundaries. The Reconstruction era demanded intense federal intervention precisely because former Confederate states attempted to circumvent newly granted civil rights using poll taxes and literacy tests.
Today’s judicial erosion echoes that historical struggle. We see concentrated interests—the ones who profit from deregulation, the ones who benefit from weakened voting protections like those struck down in Shelby County v. Holder (2013)—attempting to write their own rules for citizenship and rights. The calls for reform—term limits, mandatory ethics codes, banning stock trading by justices—are not academic suggestions; they are structural demands designed to prevent the concentration of power from becoming permanent.
The American judiciary cannot be allowed to operate as a private commodity bought and sold by political donors or insulated by life tenure. We must recognize that when rights are threatened at the federal level through supermajorities, and simultaneously rolled back in state election cycles, the only remedy is a commitment to structural accountability. The Constitution requires Congress to act swiftly to restore timely consideration for nominees and enforce binding ethics standards; otherwise, we lose more than just rulings—we lose the mechanism of self-governance itself.