The Volokh Conspiracy
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Updated Version of "Bilateral Judicial Reform"
Forthcoming in the Texas A&M Journal of Law & Civil Governance
I have posted to SSRN a near-final version of my article, Bilateral Judicial Reform. It should be published shortly in the Texas A&M Journal of Law & Civil Governance.
Here is the abstract:
Most debates about judicial reform are predictable and pointless. Progressives, who are unhappy with the current right-leaning judiciary, propose reforms that make it harder for conservatives to prevail in court. Conservatives, who are pleased with the current right-leaning judiciary, oppose reforms that make it harder for conservatives to prevail in court. The federal courts cannot be reformed through unilateral disarmament. Rather, any federal judicial reform must be bilateral. This Article offers ten neutral proposals that would equally weaken the right and the left. Part I introduces the first grouping of reforms about the Supreme Court Justices.
- Proposal #1: Require Justices to ride circuit and preside when federal courts of appeals sit en banc.
- Proposal #2: Impose statutory caps for outside income earned through book royalties, advances, and other similar business dealings.
Part II introduces the second grouping of reforms about the Supreme Court's docket.
- Proposal #3: Mandate that the Supreme Court remains in session year-round, with at least one public sitting for oral argument and one conference per calendar month.
- Proposal #4: Establish a standard timeline for review of petitions and applications on the merits, emergency, and capital dockets.
- Proposal #5: Appeals in the Court's mandatory jurisdiction must be scheduled for oral argument.
Part III introduces the third grouping of reforms about litigation in the lower courts.
- Proposal #6: Cases seeking a temporary restraining order can be decided by a single district court judge but can only yield relief to the named parties, and are limited to no more than seven days in duration.
- Proposal #7: Cases seeking a preliminary injunction or equivalent relief against the federal government or a state government are referred to the en banc court, which appoints a randomly-drawn three-judge panel with two circuit court judges and one district court judge.
- Proposal #8: Injunctions of statutes against the federal and state governments are automatically stayed, and if a three-judge panel submits a "certificate of division," the case is appealed to the Supreme Court's mandatory jurisdiction, with oral argument and decision based on emergency docket timeline.
- Proposal #9: En banc circuit courts and state courts of last resort could submit cases to Supreme Court's mandatory jurisdiction with a "certificate of split" (actual split of authority on question of federal law) or a "certificate of importance" (case presents an exceedingly important, and unresolved question of federal law).
- Proposal #10: When Circuit Judge reaches "Rule of 80," she is no longer able to vote on en banc court, and new judgeship is automatically created.
Most of these reforms, including expansion of mandatory jurisdiction, would require statutory amendments, though some proposals could be achieved through court rules. Here at least, I'm agnostic where the reform comes from. It is always better if courts self-regulate. I'll admit up front that some of these proposals are off-the-wall, and are primarily intended to stimulate debate, rather than to create a decisive action plan. A few of these proposals may create problems with judicial independence and the separation of powers, though I think they ultimately pass muster, or at least occupy a gray zone. My hope is that through some outside-the-box thinking, I can put ideas into the ether that eventually coalesce into tangible proposals.
Maybe now that the election is settled, some of these ideas may gain some traction.
