A Simple And Easy Plan To Create The Most Progressive Federal Judiciary Imaginable
Updated: Feb 1, 2019
The purpose of this article is fivefold:
1. Justify the taking of such drastic and radical measures to use all available legal and constitutional measures to functionally overthrow our current federal court system and much of its case law.
2. Provide a plan of how to easily seize complete control of the entire federal court system using only simple acts of congress. These measures are written in the Constitution itself and supported by actual historical precedent in American history. We’ll tell you in the article if there are exceptions. The court system can then be reconstructed.
3. Discuss measures that would improve the structure of our judicial system. This part is to start a conversation of good governance measures and how to implement them. Obviously policy makers should engage in a deliberative process before restructuring courts and should experiment with them over time to see what works best.
4. Using this power to completely reshape America with the ability to in essence, edit all previously established case law. Such power when combined with the ability of congress to make regular law can be used to implement a progressive agenda that supermajorities of the American people believe in but are thwarted by the system.
5. Organizing to make this happen and ensure that it leaves the fringe and becomes mainstream.
Remember, the best part is, it’s all very cool and all very legal.
Part 1 Justification Of Radical Measures:
It could be said that the United States is under a system of virtual apartheid where a minority of the
population maintains power through campaign finance rules, gerrymandering, voter suppression, ancient measures (electoral college, each state gets two senate votes, lifetime judicial appointments), and in some cases actual rigging of elections. A swift and effective takeover of the judiciary could lead to an end to gerrymandering and voter suppression along with an interstate electoral vote compact and much more. A complete and legal coup d’état of the judiciary could lead to an overturning of Buckley v. Valeo, Citizens United, Janus, and restoration of the Voting Rights Act overnight. If the replacement judges fail to do what is right, then the process can be done again. Virtually every measure we discuss has been implemented previously in American history. This is not new.
If you think this is too radical consider two things. First, should judges picked by President Bush II after Bush v. Gore be allowed to hold their seats, and should judges picked by Donald Trump after receiving illegal campaign help from Russia, Saudi Arabia, and the UAE be allowed to serve? Second, the courts have often been not just the enemy of the American people, but very often a national security threat to the very existence of the United States. Is this sensational? Just look at the Supreme Court decisions before the Civil War like Dred Scott, which helped lead to war. Bear in mind this court was jurisdiction stripped by Congress during Reconstruction. Plessy v. Ferguson stood for 58 years. The Courts blocked the New Deal until threatened with a court packing plan by President Roosevelt. They were ready to rule Social Security unconstitutional before their radicalism was challenged. Are legal positions calling for segregation and calling social security unconstitutional radical? A majority of Supreme Court justices used to say yes. This judicial radicalism should be met with an equal and opposite radicalism to take our country back from an entrenched oligarchy, which will do whatever it can to keep its power.
Part 2 How To Do A Legal Judicial Coup D’état:
In order to take effect any act of congress needs the President’s signature or a veto proof majority in Congress. People will be need in these positions make these laws happen.
There are three types of courts in the federal level of the United States. These are Article I, Article III, and Article IV courts based on the article of the Constitution that they derive their power from. Articles I and IV have no protection from acts of congress, since they weren’t considered part of the judicial branch itself and are under congressional control.
Article III courts are the judicial branch. The Constitution splits judicial power into the Supreme Court and all other courts. Courts besides the Supreme Court are under the exclusive control of Congress and can be disbanded or otherwise manipulated at any time. This precedent was established during the period of the Judiciary Acts of 1801 and 1802 along with the Supreme Court case of Stuart v. Laird. Their judges can be put in the unemployment line if the courts are dissolved. Congress can also create the courts it desires.
The Supreme Court is a little different. Between clear reading of the Constitution and interpretations that are traditions from the implementation of our current Constitution some things are made clear. It can’t be dissolved by acts of Congress. The only way to directly removed sitting Justices from lifetime appointments is by impeachment. Other means like declarations of mental incompetence by a court necessitating removal are at this point, an open question. However, there are ways of curtailing their power.
First appellate jurisdiction can be stripped from the Supreme Court, leaving it with its direct Constitutional original jurisdiction and nothing more. The biggest example of this is the jurisdiction stripping after the Civil War of any cases having to do with Reconstruction.
The number of justices can also be changed and has been throughout American history. This is used in court packing schemes such as the one threatened by President Roosevelt during the Great Depression after many segments of the New Deal were ruled unconstitutional by the conservative Supreme Court. He never followed through with his threat since the court began to rule in his favor.
The last step is an unprecedented move, but one that could be accomplished under a packed Supreme Court and one without any appellate jurisdiction. If the Supreme Court is only limited to certain Original Jurisdiction cases, then who hears appeals of those decisions? In Georgia v. Brailsford they even had a jury. It was like a regular trial court so who do you appeal to? Giving appellate jurisdiction of Supreme Court original jurisdiction cases to another court, if combined with the other steps we’ve discussed makes the incumbent federal judiciary completely powerless and would allow for an appeals process in original jurisdiction cases.
Instead of packing the Supreme Court, now we’re going to talk about setting the number of Supreme Court justices to zero… nah we’re just fucking with you lol.
All of these things are accomplished by the passage of federal law:
1. Completely restructure all Article I and IV courts without worry since Congress has that exclusive legislative power.
2. Jurisdiction strips everything from Judicial Branch. The only thing left is Supreme Court original jurisdiction which is included in the Constitution.
3. Next dissolve all federal courts except the Supreme Court.
4. Pack the Supreme Court.
5. Recreate the rest of the Federal Courts in whatever way you think best.
6. To finish off the power of the Supreme Court give appellate jurisdiction over its original jurisdiction to the new Federal Court System.
Part 3 What Should We Replace The Courts With?
Here we can use our imagination and come up with whatever we want to replace our current courts. Things like the Rule Enabling Act and the rules that stem from it can be completely changed. We should not limit ourselves. Look to justice systems that have existed throughout time and space. Let’s check out courts around the world and historical cultures. We can even look at proposals that never made it into court systems. Even court systems from works of fiction should be on the table. Let’s ask ourselves questions. Should we have an inquisitorial system? Should we allow actors to testify if they’re very good at acting and could be acting in a court room? What about the unquestioned testimony of police officers? Should panels of people randomly selected like juries review cases and overturn court decisions? Should jury pools be selected from people on unemployment benefits as a condition of keeping those benefits? If you’re a private equity asshole who liquidated some factories you might not like that one. Virtually no question is too silly to ask. No proposal is too crazy. Should justices be made to sign resignation letters dated to their retirement age, or conditional if they are found to be mentally incompetent by mental health professionals? Should justices be put to a popular nationwide vote? Senate rules could be changed to force unanimous consent on nominees if they gain a majority or supermajority in a nationwide referendum. Those who fail would never be brought up for a vote. So long as we don’t limit our imagination we can choose whatever we want and tinker with the system over time in order to get the best results for everyone who comes in contact or is affected by the system.
Part 4 On Changing Everything:
At this point we would have completely abolished all previous federal courts. The only remnant is a vestigial largely ceremonial Supreme Court. We have created federal courts and judicial process that are customized to our vision of how the judicial world should look like. Now it’s time to use that world to change the real world. Obviously if it’s a statutory law we should get congress to do it since, it’s easier and they created this new court system so they’re probably progressive enough to do it.
Case law is a little different. This isn’t the place to go through every inequity the courts have placed upon us. We can toss out the court decisions that prohibited citizenship to people from American territories, overturn restrictions on Janus, sports leagues exemptions to anti-trust laws, limiting sovereign immunity when proper, throwing out previously decided cases based on faulty trials and evidence that have left defendants imprisoned or even executed, measures that help fight against prosecutorial and judicial misconduct, overturning agreements and settlements by the politically and economically connected that are used to minimize their legal exposure and let them get away with wrist slaps. Throw in reauthorizing the entire New Deal and DACA and DAPA, gun control and expanded reproductive rights and you’re looking at a lot of fundamental changes to this country.
Steps should be taken by the courts to restore democracy to this country if congress in unwilling or unable to do so. These steps will stop oligarchical candidates from replacing them in a subsequent election and undoing the previous reforms. Use congress or the courts to bring back the voting rights act, requiring paper ballots and mail in ballots etc. Courts would be justified since this would stop election rigging and let everyone vote. End gerrymandering and overturn Buckley v. Valeo and similar cases like Citizens United, compel the states to force the interstate voter compact to end the electoral college, and change/abolish the senate so that everyone has fair political power based on population e.g. Californians by nature of large population size should get more power than the small population of Alaska. The five measures used by oligarchs and adversaries such as Russia to sway elections are propaganda/campaign spending, gerrymandering, voter suppression, and rigging vote totals. The new courts and congress must act in concert to stop these assaults on our way of life.
Part 5 How do we make this happen?
This may be the most vital part after all if this remains a fringe crackpot idea, then reform of the courts and society at large will be a pipe dream. The oligarchy and group think that controls this country would never welcome such a challenge to their entrenched power and worldview.
In a slightly more democratic time, the oligarchy received the Powell memo, which called for the corporate takeover of all aspects of society. Its author was placed on the Supreme Court because they viewed control of case law to be one of the most important aspects of control. In the decades since, they have maintained and increased their power.
This can only be done by organizing. Groups must be founded to advance and provide ideas for judicial policy and they must be aggressive and ready to fight back. They must be focused on spreading these ideas to everyone and making it mainstream. They must recruit candidates to force incumbent members of Congress and the President. They must be wary of those who will seek to co-opt the platform as it becomes more popular, but seek only half-hearted reform.
So like I said, very cool and very legal!