The federal judicial system

Here again, Great Britain was a strong influence on the framers of the Constitution when it came to designing the Judicial Branch of the federal government. As English judges were appointed by the king, they could lose their job if their rulings were displeasing to the king. The founders' decision for federal judges to "hold their offices during good behavior" (in other words for life) was intended to keep them independent from politics and from fear of retribution of being fired. In practice, the Supreme Court is sometimes accused by politicians of ruling against the wishes of the majority, including Presidents, whose Executive Orders have been overturned. For this reason, appointments have become highly political.

The Supreme Court

In our new process, the Supreme Court would be considered a Federal Council with Associate Justices chosen randomly from a qualified pool of experienced judges. I propose that the Supreme Court candidate pool be the active federal appellate court judges. With one Associate Justice of the Supreme Court selected each year, the approximately 179 appellate judges would form an adequately sized, qualified pool of candidates. The selected appellate judge would immediately be replaced from the appellate judge pool. When a Chief Justice finished their service, they would be released. They would not return to their position in the appellate court. The Supreme Court would not have a Citizen Governance Website, as the purpose of the judicial branch will be to make judgements regarding a specific case, which may include a specific law, but not to make new law. The citizens would revise laws or make new laws through the Citizen Governance Websites in the other two branches.

Term limits

Term limits and random selection have been proposed previously for the Supreme Court by Joshua D. Hawley and others. [5]. In our design, as a Federal Council, Supreme Court justices would serve for 9 years and each year the "fresh blood" would reduce the council's bias. The longest serving member would be the Chief Justice that year and the others would be associate justices.

Judicial activism

Article III of the Constitution that creates and empowers the judicial branch of the government is short and specific. The empowerment is contained in one sentence, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." [6] "Judicial power" is recognized as the power to interpret laws when there is a lawsuit and to try the accused for alleged crimes. No power to interpret the Constitution or to make constitutional law was granted.

However, in Federalist Paper #78, Alexander Hamilton stated his opinion that the judiciary branch must be given the power of judicial review, to declare as null and void laws that it deemed unconstitutional. [7] For some reason, the opinion of each writer of a Federalist Paper is often deemed by political historians to be the mind of the framers of the Constitution, even though the papers were actually political propaganda copy written by three federalists used to persuade the states to ratify the Constitution. The papers were not joint declarations by all the framers of their rationale. All this particular Federalist Paper represents is the opinion of Alexander Hamilton, the same who wanted an American monarchy and who started the first political party with his fellow bankers and wealthy business cohorts.

Regardless, the power of judicial review was accepted by the President and by Congress. It became precedent when the Supreme Court announced its authority to rule on the validity of laws in the case of Marbury v. Madison. Originally, the Supreme Court did not claim that it had the only legitimate right to interpret if a law conformed to the constitution. The President and Congress also held that right. However, later the Supreme Court declared that "the federal judiciary is supreme in the exposition of the law of the Constitution" and the President and Congress has allowed the court's self-appointed power to stand.

However, that was not enough. Beyond ruling if a law was consistent with the Constitution, judges began to interpret the meaning of laws according to their own individual policy preferences. Under the definition of "laws," the Supreme Court now has the power to interpret the Constitution itself. They have followed a new theory of "living constitutionalism," where the Constitution evolves based on the opinions of the justices as opposed to the amendment process as set out in the Constitution.

Therefore, the 9 justices of the Supreme Court have become more powerful (and possibly dangerous) than the other branches of government. Their judgement has become a powerful political force due to its ability to create new law through its interpretations of the wording of laws and of their intent. Once the Supreme Court passes judgment on a constitutional question, its decision cannot be altered by any vote or procedure save a constitutional amendment. Therefore, the Supreme Court has the final say on every constitutional matter on which it rules. [8]

When our Collaborative Democracy is in place, questions regarding the meaning and intent of laws should be decided by the people through the democratic solution process on the website of the Legislative Council. Therefore, Article III of the Constitution would be amended to clarify these two points.

1. The Supreme Court (and perhaps other federal courts) would be allowed to determine if a law was consistent with the Constitution before the law goes into effect, but not at a later time. This legal review would be a standard part of the democratic solution process. It would explain its basis for a ruling just as it does now.

2. The Supreme Court would not have the power to interpret the Constitution itself and thereby create new law. Only the people would have this power through the Citizen Governance Website of the Legislative Council.

Power to recall justices

Any federal official can be impeached, including judges. In the last 230 years, 15 federal judges have been impeached and 8 have been convicted. That is the only method of removing a judge from their position currently.

However, a basic premise of all Federal Councils is that a member can be removed if they are unsatisfactory, not only if they commit a crime. Chief Justices serve the people just as all other government employees. Therefore, Chief Justices could be removed by the unanimous vote of all the other members of the Supreme Court or by a vote of 60% of the citizens as described under "Removal from office" under "Federal Councils" in this chapter. As explained there, removal could not be the result of dissention or voting against the rest.

Appellate and Trial Court Judges

Currently, an additional 881 judges are appointed by the President to the Judicial Branch along with the Supreme Court. The US District and territorial Courts have 677 judges. The US Court of International Trade has 9. The US Court of Federal Claims has 16. The US Court of Appeals (previously and commonly referred to as the appellate court) has 179.

Each court outside of the Supreme Court would have its own pool of qualified candidates. Each new judge would be randomly selected from the court's candidate pool. A judge would serve for 9 years. Accordingly, every year judges that had served 9 years would be released and new judges would be selected from that court's candidate pool to replace them. Aside from 9-year terms and random selection, the federal courts would continue to operate as they do now.

Figure 9-1