Possible way to neuter the Supreme Court (and the Federal Judiciary in general) without changing its size or structure

(Note to everyone: This thread is a “what if” thread and an intellectual exercise. I don’t think the Democrats have the slightest intention to do anything I mention below Just a scenario. So no need for biting comments or snark.)

It would be possible for an incoming Democratic administration to effectively neuter the Federal Judiciary, if they felt that the judiciary was likely to crush their agenda and they could do so without resorting to adding Justices or other structural changes.

Rather, they need merely remove the following quoted sections from 28 USC.

Essentially, removing those sections completely cuts off Federal Question jurisdiction by the Federal Courts. Instead, state courts would have sole Federal Question jurisdiction and the several State Supreme Courts would be the final arbitrator for their respective State.

This move would effectively sweep the Federal Judiciary out of the way of the President and Congress, but also would have tremendous downsides.

Without the Supreme Court to keep everybody on the same page, there would be a 50 State patchwork of legal precedent. Each State would have its own abortion precedent, its own gun control precedent, its own campaign finance precedent.

Congress can block state court jurisdiction over particular issues. For example, if they pass socialized medicine, they could include a bar to state court challenges. And with Federal Court challenges blocked, essentially the law stands, with no challenge possible in any court.

The elected branches of government would be empowered to decide what the Constitution means and the Federal Judiciary would be reduced to a relatively minor status.

Now it would have the major advantage of rendering the Federal Judiciary non-political. The entire court could die of Covid-19 and literally nobody would give a ■■■■■ because the Federal Courts would be meaningless to most people. The only major thing they would have left is Civil Rights cases and Voting Rights cases, which come to them under a different jurisdiction. Nobody would care who replaced Scalia, Ginsburg or anybody else. That would certainly be nice.

People around here constantly complain about the Federal Courts doing this and that. This would end that situation and people would then have to complain about their elected Representatives.

There are certainly major upsides and downsides to this, but clearly there is an alternative to structural changes in the courts or adding Justices.

(P.S. I would keep the Federal Courts busy by increasing diversity jurisdiction from complete diversity to minimal diversity.)

§1257. State courts; certiorari

(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.

(b) For the purposes of this section, the term “highest court of a State” includes the District of Columbia Court of Appeals.

§1258. Supreme Court of Puerto Rico; certiorari

Final judgments or decrees rendered by the Supreme Court of the Commonwealth of Puerto Rico may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of the Commonwealth of Puerto Rico is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.

§1260. Supreme Court of the Virgin Islands; certiorari

Final judgments or decrees rendered by the Supreme Court of the Virgin Islands may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of the Virgin Islands is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.

§1331. Federal question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

would each state print it’s own currency and have it’s own standing armies?

and international treaties?

Nope.

I will note that the United States District Courts and the defunct United States Circuit Courts did not possess Federal Question jurisdiction until 1875.

Seems to me 14th Amendment will get in the way.

As I noted above, the changes would not effect the Federal Judiciary’s jurisdiction over Civil Rights and Voting Rights issues. That jurisdiction is conferred via the Civil Rights Act of 1964 and the Voting Rights Act of 1965 and would not be changed in any way.

Seems to me you’re picking and choosing thus the problem. Now since having 2nd incorporated prevents states from circumventing those right that you mention.

Democrats thought they were pretty smart to do away with the filibuster under Obama. Many were sure there had been a shift in the country that would not change.
Many were regretting this, later.
If you pull something like this plan, expect it to backfire at some point.

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I should note that I am not ADVOCATING for something like this. Rather, as I said in the OP, I am bringing it up purely as a theoretical.

The Democrats are NOT going to do this, I can assure you.

Would there be any viability to term limits, perhaps something in the 15-20 year range? A constitutional republic will derail itself when its high court justices are treated like god emperors.

You will need to amend Article III, section 2 of the Constitution.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,

you need to read the rest of it. The congress has the power to strip the courts of jurisdiction

Not the Supreme Court.
According to the Constitution there is and always will be a Supreme Court. I am not a lawyer or a “scholar” so I can’t say whether congress can, or to what extent they can interfere in the Lower Federal Courts they have established.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

They gambled and lost.

My how times have changed!

The Supreme Court’s appellate jurisdiction can be very narrowly construed and even its original jurisdiction has been diluted by making it non-exclusive.

28 USC 1251 defines the Supreme Court’s original jurisdiction.

§1251. Original jurisdiction

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

(b) The Supreme Court shall have original but not exclusive jurisdiction of:

(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;

(2) All controversies between the United States and a State;

(3) All actions or proceedings by a State against the citizens of another State or against aliens.

In practice, the Supreme Court refuses original jurisdiction cases coming to it under Section (b), instead requiring plaintiffs to bring their disputes in United States District Court. In practice, the Supreme Court’s original jurisdiction is a dead letter for the most part, except for State vs State “water wars” cases.

Everything else that might come to the Supreme Court is appellate. And that appellate jurisdiction requires that Congress have previously opened a jurisdictional door. Right now, that “door” is wide open. The Supreme Court can take any case from any State Supreme Court that raises a Federal Question. And they can take cases that originated in the United States District Courts via the huge span of jurisdiction of those courts.

Congress can close the Supreme Court’s jurisdiction door over State cases by simply removing its appellate jurisdiction over State Supreme Courts.

Congress can close the United States District Court’s jurisdictional doors simply by removing any of the sections listed below. If the United States District Court’s cannot consider any matter, by extension, the Supreme Court cannot review the corresponding matter.

The Federal Judiciary is only as powerful as Congress permits it to be.

CHAPTER 85—Front Matter]([USC02] 28 USC Ch. 85: Front Matter)

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Sec. 1330. Actions against foreign states

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Sec. 1331. Federal question

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Sec. 1332. Diversity of citizenship; amount in controversy; costs

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Sec. 1333. Admiralty, maritime and prize cases

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Sec. 1334. Bankruptcy cases and proceedings

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Sec. 1335. Interpleader

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Sec. 1336. Surface Transportation Board’s orders

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Sec. 1337. Commerce and antitrust regulations; amount in controversy, costs

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Sec. 1338. Patents, plant variety protection, copyrights, mask works, designs, trademarks, and unfair competition

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Sec. 1339. Postal matters

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Sec. 1340. Internal revenue; customs duties

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Sec. 1341. Taxes by States

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Sec. 1342. Rate orders of State agencies

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Sec. 1343. Civil rights and elective franchise

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Sec. 1344. Election disputes

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Sec. 1345. United States as plaintiff

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Sec. 1346. United States as defendant

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Sec. 1347. Partition action where United States is joint tenant

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Sec. 1348. Banking association as party

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Sec. 1349. Corporation organized under federal law as party

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Sec. 1350. Alien’s action for tort

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Sec. 1351. Consuls, vice consuls, and members of a diplomatic mission as defendant

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Sec. 1352. Bonds executed under federal law

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Sec. 1353. Indian allotments

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Sec. 1354. Land grants from different states

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Sec. 1355. Fine, penalty or forfeiture

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Sec. 1356. Seizures not within admiralty and maritime jurisdiction

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Sec. 1357. Injuries under Federal laws

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Sec. 1358. Eminent domain

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Sec. 1359. Parties collusively joined or made

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Sec. 1360. State civil jurisdiction in actions to which Indians are parties

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Sec. 1361. Action to compel an officer of the United States to perform his duty

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Sec. 1362. Indian tribes

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Sec. 1363. Jurors’ employment rights

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Sec. 1364. Direct actions against insurers of members of diplomatic missions and their families

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Sec. 1365. Senate actions

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Sec. 1366. Construction of references to laws of the United States or Acts of Congress

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Sec. 1367. Supplemental jurisdiction

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Sec. 1368. Counterclaims in unfair practices in international trade.

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Sec. 1369. Multiparty, multiforum jurisdiction

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And the rs in the same boat. Majority rules and screw the rest.

So when the filibuster is done away with and SCOTUS is upped from 9 to 13.

You have Mitch McConnell to blame for his escalation.

Allan

yes, the supreme court

I’d dare them to try it, but I don’t think even the Dems in Washington are that stupid.

Possible snag even if Democrats win the Senate?

“Manchin said he also doesn’t support Democrats’ push to pack the courts.
“Why would you go down that path? It didn’t work in 2015 with the nuclear option, and I would have doubts it would work this time,” Manchin said.
Manchin, who is known for reaching across the aisle, said the Senate needs to return to civility and bipartisanship.”