JUDICIAL REFORM
Catastrophic Thinking has a cornerstone in analysis called sustainability and nowhere is that more important than in continuity of government. Understanding how our government was originally designed is a critical part of that analysis. Checks and balances, especially between the three branches of government, the executive, the legislative, and the judiciary, is essential to preserving our government. Unfortunately, the judiciary has proven to not be nimble enough to respond to catastrophic circumstances and has deferred to the executive and legislative branches in times of crisis. For example, President Abraham Lincoln suspended the right of Habeas Corpus and had military tribunals decide on “civilian” issues during the Civil War, and the judiciary did not intervene until after the war was over and then decided that action was unconstitutional, in Ex Parte Milligan, 71 U.S. 2 (1866). At the other extreme, some mere District Court Judges have taken to issuing nationwide injunctions so that a single judge can thwart the nationwide efforts of the country. While we can tolerate these instances of judicial arrogance in peacetime, they have no place in a nationwide crisis.
To reform the judiciary so it can continue to be a check and balance in times of crisis, instead of afterwards, and at the same time not interfere with first responders, there are several reforms which need to be implemented. Some can be by statute, but others would require a Constitutional Amendment.
Set the Supreme Court at 9 judges, to eliminate court-packing threats. Some circles suggest undermining the Supreme Court’s integrity is a way to get favorable outcomes to their point of view. What they fail to realize is the Court was set up that way as a check and balance against the tyranny of the majority or of any political group. Further, have judges appointed for staggered 18 year terms, with one justice’s term expiring every non-election year.
Require a two-thirds majority to declare a law unconstitutional. The Supreme Court created the doctrine of judicial review back in the case of Marbury v. Madison, 5 U.S.137 (1803). This cherished and vital doctrine was not in the Constitution, but was created out of thin air by early Judicial activists. Judicial Review is now a valuable check and balance which the founding fathers should have anticipated. But recently, the Court has become politicized where Justices vote according to their political leanings. Instead of the greatest jurists and finest minds we have Justices who are selected because they will reliably vote a certain way. It was not always this way. Back in 1954, in Brown v. Board of Education, 347 U.S. 483 (1954), a landmark decision which declared segregation of public schools was unconstitutional, even if they were separate but equal, the Supreme Court carefully negotiated behind the scenes to have a 9-0 vote so as to remove any doubt. By allowing 5-4 votes, there is much ambiguity built into the system, which merely postpones a day of reckoning to the next election. By requiring a super majority of 6-3 to declare an Act of Congress unconstitutional, the days of backroom negotiations will return, so that instead of a 5-4 tyranny of the majority, we will return to a kind of moderated consensus. In the absence of a consensus, the minority view will prevail. Now the majority will have every incentive to try to moderate their opinion to get a super majority. As long as the minority does not consist of political shills, there should be some compromise position that can be reached.
Create a 13th Judicial Circuit with exclusive jurisdiction of Matters of State, not subject to the review of the Supreme Court. All appeals from any Federal District Court should be directed solely to the 13th Judicial Circuit if they involve a Matter of State. The 13th Judicial Circuit, seated in Lincoln, W.D.C., would not consist of anyone with a military career, to preserve civilian review of military matters. In the event of a dispute of jurisdiction between the Supreme Court and the 13th Judicial Circuit, the Matter of State would be referred to Congress. By Act of Congress, either the Congress would decide which judicial body has jurisdiction; or would decide the Matter of State itself. Congress would have five (5) days to dispose of the matter. (Is that too long in a catastrophe?) If Congress does not act, then the President would by Executive Order, which could not be challenged in any Court. Matters of State would include Declarations of War, Declarations of Catastrophe, acts of terrorism (domestic or foreign), immigration and border security, cybersecurity, disputes involving foreign nationals or foreign corporations as primary litigants, death penalty cases, military tribunal appeals, nuclear power and disputes, and anything else that the drafters of the Constitutional Amendment would care to add. Joint decisions by both Courts would be permitted, even encouraged. With term limits, Justices would be eligible to serve sequentially in both Courts.
Accelerated Dispositions. Probably, the most important aspect of this dual judicial systems is to encourage expeditious resolution of Matters of State. The Supreme Court has proven it can act fast when it wants to. In Bush v. Gore, 531 U.S. 98 (2000), the Florida Supreme Court ordered a partial recount, which violated Equal Protection of the law. The Supreme Court accepted the case on December 9 and ruled on it on December 12. In Matters of State, that is the way it should be. The 13th Judicial Circuit should have an expedited calendar, one that would work for a catastrophic situation.
End Power of District Court Judges to issue Regional or Nationwide Injunctions. Injunctions should be limited to the parties before the Court. Any broader-reaching disputes should have the trial Judge issue a recommendation to the Appellate Circuit Court, which must then deny the injunction or refer it (1) to the Supreme Court if it is a domestic policy dispute OR (2) to the 13th Judicial Circuit if it is a Matter of State, within four days (4) days. The reason for this is obvious. In a catastrophe, we cannot have mere District Court judges holding up a national response to a cataclysm.