There needs to be a major judicial reform. Article III of the Constitution just lays out that there must be a SCOTUS, and that congress can create other federal courts as it sees fit.
Right now there is a huge bottleneck in cases from the federal district courts to the Supreme Court. Some 8,000 cases a year, of which the SCOTUS can only hear a few dozen. All the rest, no matter how worthy, are returned to the federal district courts for a final decision.
Much of this problem is not in divining the constitutionality of issues, but in the ability of any federal judge to “federalize” local and State laws, because he finds them interesting, and can see a constitutional angle to them.
While there is indeed value and importance in doing so, there is no body to intercede and say to the federal judiciary, “No, this is a local and State, not a federal matter”; who will take it from them, after they have examined it for constitutional issues, in care there actually are some, and if not, to return these cases to the State and local level.
Thus there is a continual growth of federal judicial power, alongside of legislative and executive power, with no body or mechanism to trim it, short of a constitutional convention.
So a way to do this is for a constitutional *amendment* to create a Second Court of the United States. *Not* a federal court, but a body modeled after the original US senate. 100 State judges, appointed by their legislatures, each judge with a six year term parallel to one of their two senators.
There would be two purposes to this Second Court of the United States. Unlike federal courts that determine if laws and cases are constitutional, they would decide, after lower courts had reviewed cases for their constitutionality, whether those cases should remain in federal jurisdiction, or be returned to the State and local level for decision.
If a simple majority decided that they should, only the SCOTUS could overturn their decision. And if a 2/3rds majority decided this way, the law or case could not be appealed further.
In any event, since the SCOTUS could still only hear a few dozen cases, the rest of these 8,000 cases would be returned for the decision of the Second Court of the United States. Then, only if they agreed these were federal cases, would they be returned for a district court decision. Otherwise, they would be returned to the States, and would no longer be federal cases.
The *other* thing for the Second Court of the United States to do would be to have original jurisdiction in cases involving lawsuits between States, and between States and the federal government.
That is, for example, with the Justice Department suing Arizona over its SB 1070 law, it would *first* be up to the other 49 States to decide who is right.
This also means that States could sue the federal government for every law, regulation, executive order, judicial precedent, etc., foisted on them, and if the other States agreed, whatever it was would stop having federal authority.
In effect giving the States the right of nullification, and the ability to trim the size and authority of the federal government. Executive, legislative and judicial branches.
A necessary thing, since the federal government has proven both unwilling, and perhaps unable, to reduce its own size and authority. So somebody has to do it for them.
Interesting thoughts. It looks like it would be especially effective in the limiting of states rights by the feds and that’s needed badly. Thanks.