I posted a thread on a Democratic Supreme Court reform proposal. While I strongly oppose the proposal overall, it did have a couple of meritorious provisions.
The three main issues with Federal Judiciary is the Supreme Court’s increasing use of its so called “shadow docket” (i.e. interlocutory docket), the ability of a single United States District Judge to enjoin a Federal statute or an Agency regulation on a nationwide basis and court/judge shopping.
My proposal is thus:
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I would remove the Supreme Court’s interlocutory appellate jurisdiction, with ONE and ONLY ONE exception. The Supreme Court could entertain interlocutory appellate jurisdiction for the purpose of enjoining a pending execution for consideration of a habeas issue. However, they could not intervene on an interlocutory basis to overturn a lower court stay of an execution.
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The Supreme Court would retain appellate jurisdiction over FINAL JUDGEMENTS of the United States Courts of Appeals, three Judge United States District Courts (Civil Rights and Voting Rights), Courts of Final Resort in the several States, the District of Columbia Court of Appeals, the Supreme Court of Puerto Rico and the highest courts in the territories.
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While the Supreme Court would not lose any subject matter jurisdiction overall, they would be deprived of interlocutory jurisdiction. This would have the affect of ensuring the Supreme Court remains in its proper role as a court of last resort, not a court of first resort.
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I would establish a United States Court of Interlocutory Appeals. This court would consist of one judge randomly selected from each of the 12 regional Courts of Appeals and who would serve a one year term on the court. They would simultaneously continue their service on their home Court of Appeals.
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The United States Court of Interlocutory Appeals would have a very small jurisdiction. It would have direct interlocutory jurisdiction when a United States District Judge issues either a nationwide injunction or an injunction applying to non parties in a case. When that happens, the injunction would automatically be stayed and appealed to the United States Court of Interlocutory Appeals. The court would hear the appeal on an expedited basis and the concurrence of 8 of the 12 Judges would be required to sustain the injunction. The judgement of the United States Court of Interlocutory Appeals would be final and not subject to review either by any of the 12 regional Courts of Appeals or by the Supreme Court, at least not prior to judgement becoming final in the District Court.
(NOTE: Obviously, the judgement of the Interlocutory Court of Appeals could be overturned by the appropriate Court of Appeals or the Supreme Court, IF and WHEN the cases reach those respective courts after final judgement is had in the District Court. Just not BEFORE judgement becomes final in the District Court.)
- The final reform would be to venue for cases challenging a United States Federal Statute, Executive Order or agency regulation. When such a case is filed anywhere in the United States, a lottery style drawing would be held to randomly select which of the 91 Article III District Courts would hear the case. The case would be randomly assigned to any eligible active status or senior judge in that district. This, of course, would end the rampant evil of court shopping and judge shopping. Again, this procedure would only apply to the limited class of cases above and would not affect ordinary criminal or civil cases.
And to make it clear, the Supreme Court retains the full jurisdiction they have now, but only on final judgements, not interlocutory judgements.
