We have been politely admonishing our legislators about the activist judiciary for decades without result. It is time such pleasantries to halt. Bring in the paddleboard and change some attitudes.
Well, technically, federal judges are supposed to examine the constitutionality of laws. The problem lies in that there are no constraints on them doing so. No organization to say that, “While there may be a constitutional issue that could be found here, or not, it should be within the jurisdiction of the local and State courts to determine, not the federal bench.”
Perhaps the most profound example is with the death penalty.
For many federal judges, they cannot overcome their whimsical desire to interfere, with what should be close to a sacrosanct decision by a jury of peers. Only on the most extreme cases, where horrific abuses have been levied on innocent people, should there be any issues with a State death penalty at the federal level.
Right now, for example, federal judges are bickering over the minutiae of the drugs used in State executions. There is no real justification in doing so other than to delay the execution, while nit-picking about the means of execution. This has been going on for decades about every well proven means of execution.
And it is intolerable.
A Second Court of the United States would be a great venue for this, as it would give the States an opportunity to lay down some blanket rules about appellate procedure. Importantly, while the SCOTUS might have once performed that function, they can no longer do so, inundated with cases. That is, 8,000 cases a year, of which they can hear just a few dozen. The rest are returned to the District Courts, for better or worse, often worse.
And even the SCOTUS wastes many of these precious few dozen, on trite and meaningless cases, such as the now infamous, Alaska “Bong Hits For Jesus” case, which they have agreed to hear TWICE.
Since they can only have such a limited caseload, these other about 7,964 cases should have a chance to be “de-federalized”, and only if the Second Court of the United States agrees that there is a federal, constitutional issue dominating the case, will it be returned to the decision of the District Courts. Otherwise, its “federal value” has not been established, so it is no longer federal business.
So it would be up to the Second Court to determine if a condemned man may be hung by the neck until dead with a hempen rope whose fibers twist right rather than left, and if the young man who held up the Bong Hits For Jesus sign should be returned to his high school assistant principal’s office for a paddling, instead of wasting the time of the federal courts.