(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.
