Essentially, this bill strips the Supreme Court of its appellate jurisdiction. ALL of its appellate jurisdiction. It leaves the Supreme Court with only its original jurisdiction.
Further, it requires direct appeals from the decisions of three judge panels (primarily civil rights and voting rights cases) go to the United States Court of Appeals for the District of Columbia Circuit. Currently, these appeals go directly to the Supreme Court as a matter of right.
If a party to a case requests a nationwide injunction against the Federal Government, the case would automatically be reassigned to the United States Court of Appeals for the District of Columbia Circuit.
A multi circuit panel would be created which would essentially have final appellate jurisdiction in cases challenging the actions of Federal Agencies and cases seeking to have a Federal law declared unconstitutional. It would require the vote of 70% of Judges of the multi-circuit panel to strike down a law or an agency action.
Basically, if you can’t change the Supreme Court, simply neuter it.
And if you go through the history of the federal judiciary, the sentiment for and against this proposal is somewhat confusing. I think the slight majority view would be in support of the validity of this legislation, though a very strong minority view would be in opposition.
While obviously I don’t support this legislation and obviously it will not go anywhere in a Republican controlled House, it is something that could raise its head in the future if Democrats regain unified control but remain up against a hostile Supreme Court.
If this was to actually pass, being a Supreme Court Justice would become a mighty boring occupation, with little but water war cases to fill their time.
It is clearly going after the substance of the decisions with the intent to change the expected outcome. It’s goal is not really procedural.
Allowing something like this could open up all sorts of ploys to whichever party dominated at the time.
It will be interesting to see who comes out in support of this bill. Since it has no chance of passing, I doubt if there will be much support.
I’ ve considered the idea that challenges to Executive actions and for nationwide injunction should all go to the DDC and then to the CADCC. The objectively good reason for this is to regularize the interpretation and review of Executive action. The more cynical and subjective reason is to divest the Texas District Courts of jurisdiction, and remove the corruptible opportunity for forum shopping.
The idea is to replace the Supreme Court with the Washington DC appellate court, which is likely expected to be much further to the left and dominated by Democrat appointees.
I’m not overly concerned with this proposed statute. If left Democrats had the votes to pass this as a law, they would also have the votes to pack the Supreme Court…which would be the more direct route.
While I oppose this legislation, I acknowledge that forum shopping by both sides is a major issue.
Republicans shop cases to Texas where they have a plethora of favorable Judges.
Democrats shop cases to California where they have a plethora of favorable Judges.
I think this issue could be solved by requiring a random assignment of cases challenging Federal Agency actions and Federal law. First, a random draw to one of the 91 Article III Judicial Districts. Then a random draw which would include ALL of the Active and Senior Judges of the District, none of this division bull ■■■■■
Meaning EVERY District Judge in the country could potentially be the one to hear your case.
Also, requiring an interlocutory consideration of a nationwide injunction BEFORE it goes into effect is a good idea.
The bill in the OP obviously goes too far, but there are valid issues that need to be fixed.
Mostly that bill puts all the politically hot issues in DC. It proposes to end forum shopping by placing cases in the courts the Liberal Democrats prefer. It is one giant forum shopping bill.
Just modify the bill to put all these cases in the fifth circuit and see how much they like this idea as a principle.
Which is the nice thing with my idea. A case could potentially end up in the Fairbanks, Alaska courtroom of Ralph Beistline. It could end up in North Dakota. Nobody would know until the random case draw. Which also means that the Court of Appeals would be random as well. It could end up in DC or in the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th or 11th. Neither the government nor private parties could game the process.
I will issue a counter proposal to the original Democratic proposal described in the OP.
The Supreme Court would keep its final appellate jurisdiction, but it would lose interlocutory jurisdiction in all cases.
A United States Court of Interlocutory Appeals would be created, with one Circuit Judge from each circuit serving a term of one year on the new court. A total of 12 Judges would sit.
The United States Court of Interlocutory Appeals would have final interlocutory jurisdiction in cases in which a Federal law, Executive Order or Agency action is being challenged.
In any such case in which a preliminary injunction is ordered by a District Court and such injunction is expanded to include non-parties or in which a Federal law, Executive Order or Agency action is being enjoined, the court would have to sustain such injunction prior to its actually being imposed and the concurrence of 8 Judges would be required to sustain an injunction.
Once a case goes to a final judgement in the District Court and then a final Judgement in the regular Court of Appeals, then and ONLY THEN would it be permitted to be appealed to the Supreme Court and then and ONLY THEN could the Supreme Court exercise any preliminary jurisdiction.
This essentially would close the Supreme Court’s “shadow docket” completely. It would force them into their proper role as a court of FINAL resort, not FIRST resort.
I would also forbid the Supreme Court exercising interlocutory jurisdiction in any death penalty case, regardless of whether it is a direct appeal, collateral appeal or habeas corpus petition. A defendant cannot be executed until the Supreme Court renders a final judgement. But in many cases, the Supreme Court has summarily and without explanation vacated habeas proceedings that had merit. This would prevent them from doing so. A death penalty defendant would be assured a full and complete hearing at the District Court level and Court of Appeals level.
I can think of a few quick roadblocks that could be placed legislatively or by senate rules. Presidents don’t have a free hand in appointments. Nothing stopping the senate from changing their approval to a 75% threshold for example. That alone would pretty much end it. Future candidates would have to be inoffensive to both sides of the partisan divide.
The lower the approval threshold the more partisan the appointment can be. 51 votes for approval guarantees partisanship/\