The problem of jurisdiction shopping and one judge imposing a national injunction

Determination of the legality of various Presidential actions has become problematic in the USA because:

1.      Presidents are claiming expanded powers in executive orders and under emergency decrees.

2.      Opponents are aggressively shopping for favorable district courts in which to file a suit to block the president (for example, the political left typically files suit in California while the political right typically files suit in Texas).

3.      A single judge then frequently issues a nationwide injunction.

We can improve the process by requiring a panel of 3 district judges to hear cases involving the President of the USA (I’m flexible as to the definition of the cases over which such a panel would preside).

The panel could be required to consist of district judges from 3 different states.  There might be a principle determining one district judge and the others might be picked randomly.  (Again, I’m flexible as to the details.)

The advantages would be:

a)      Less power for a single judge to exercise a national injunction, thus addressing item #3 above.

b)     Less ability to shop for judges and less consequence even if plaintiffs shopped for one of the judges, addressing item #2.

c)      The decision would reflect three different judges’ perspectives, which is broader than current practice.  Not only does this bring more expertise and diverse views, it also brings more discussion amongst the judges.

d)     Unanimous decisions would carry much more weight than decisions made by a single judge.  There might be little reason to pursue the issue further.  Such decisions would create less pressure for review than current one-judge rulings.

e)     Even 2-to-1 rulings would be more decisive in the sense that rather than having a close call, perhaps, for one judge, we’d have at least two judges concurring on the decision.  A strong dissent could distinguish cases worthy of further pursuit.

It would be more costly to involve three judges (including travel) and it could take more time (scheduling for example), but those costs seem small for the advantages that would result.

These issues are bi-partisan, so hopefully Congress could pass such reform.  It clearly is within Congress’s scope, as demonstrated by the following history.

Article III of the Constitution grants the federal judiciary the power to hear cases and controversies arising under the Constitution, laws, and treaties of the United States and grants Congress the authority to fill in details.  The Constitution does not mention district courts.  The Judiciary Act of 1789 established the federal district courts.  In the  Judicial Code of 1911, Congress abolished US Circuit Courts, giving district courts more power.  I have not reviewed how/where the power of district courts to decide cases involving the President is defined.  But, clearly, Congress has the ability to change the rules.

Note: Joel Cohen and Bennett L. Gershman, wrote an article* on this topic in the Wall Street Journal.  They recommended that the Supreme Court require that the judge grant an automatic stay of [5] days to allow an appeal.  The appellate court would be required to decide the case within [30] days.

Their suggestion seems superior if the cases would be rarely appealed, because, in that case, their suggestion would save time and money.  My suggestion seems better if the cases were likely to be appealed, because it would avoid the cost and time for two hearings.

Rep. Laura Libby denied speaking and voting rights in Maine Assembly because of Transgender Facebook post

 https://www.wsj.com/opinion/rep-laurel-libby-supreme-court-transgender-athlete-facebook-post-c35a3c1c?st=ayp86t&reflink=desktopwebshare_permalink:  Maine State Representative Laurel Libby posted a picture of a student on the podium for winning the girl’s pole vault (see below), which allowed her team to win the state title by one point.  She showed a public picture showing the winner previously competing in the boy’s pole vault, criticizing ME law that allows transgender males to compete in female competitions.  It is my understanding that she named the student.  According to the WSJ, the Maine constitution allows the House to expel members with a 2/3 vote.  By a majority vote, the Democrats censured her for endangering the student and demanded that she apologize.  When she refused, the Speaker banned her from speaking and voting in the House, under a law based on someone being in breach of House rules.  The Democrats claim they did not expel her, and that it was “modest punishment” that merely required her “to apologize”.  According to a poll cited by Fox, 64% of the Maine public opposes permitting transgender athletes to compete in female competitions (29% approve; 7% undecided).  Ms. Libby had been banned from representing her constituents for three months when the Supreme Court removed her punishment pending resolution of the complaint.  Justices Sotomayor and Jackson objected.  The WSJ reported that Jackson called the decision “both inequitable and unwise”.  I think it is more pertinent that Justice Jackson opined that the watering down of the court's standards for granting emergency relief is hardly a model for sound decision-making and will cause a surge in requests for 'extraordinary' intervention — at earlier and earlier stages of ongoing lower court proceedings.

Here's my take:

• Ms. Libby could have made her point without posting the pictures and naming the athlete.  She should have been willing to apologize for identifying the athlete while reiterating that it was appropriate for her to cite the incident and criticize state law.  (I’m guessing the Democrats would have accepted that, ending the problem.  If not, then they’d be more clearly wrong.)
• Taking away her right to represent her constituents indefinitely seems to be an inappropriate penalty.  They already had censured her.  I think that was enough.
• Justice Jackson has a good point, but taking away a representative’s right to vote indefinitely is significant, so I would have voted with the majority.  However, I would have liked the WSJ to publish that aspect of Justice Jackson’s complaint.  I think they could have fit it into their editorial; if not, they could have published a more complete article and referred to it.

Are libraries permitted to curate book lists?

U-S-_&_World_Page_46.pdf: TX Supreme Court ruled 10-7 that Llano County library can remove 17 books due to their content on race, gender, sexuality and children’s books that contained nudity.  “All Llano County has done here is what libraries have been doing for two centuries: decide which books they want in their collection.”  “Such decisions are very subjective, and it’s impossible to find widespread agreement on a standard to determine which books should or should not be made available.”  According to the majority, the plaintiffs felt “that libraries cannot even remove books that espouse racism.” 

The dissent wrote “Public libraries have long kept the people well informed by giving them access to works expressing a broad range of information and ideas.”  “But this case concerns the politically motivated removal of books from the Llano County Public Library system by government officials in order to deny public access to disfavored ideas.”  The majority “forsakes core First Amendment principles and controlling Supreme Court law.”  “Because I would not have our court ‘join the book burners, I dissent.”

I side with the majority here.  This clearly is NOT book-burning.  It is the library's responsibility to reflect the community's standards.   The plaintiffs should ask the library to create an appeal process.  If the library is unwilling to do so, they should seek a law.  The policy/law might work as follows:

1. The library will make a book available (or unavailable) if a majority of voters express their desire for that book to be available (or unavailable).
2. If [30%] of the number of voters sign a petition to request that a book be made (un)available and the library refuses to do so or fails to act within a year, that book will be voted upon in the next election (but not sooner than [6] months).  (CT: the percentage required has to be high enough to dissuade rampant activity and to make it likely that the voters would agree.)
3. Each book on the vote list will require a separate response from the voter.
4. When the public has voted to make a book available or ban a book from the library, the library will comply for at least [10] years.  (CT note: the library has to regain discretion eventually.)
5. A book that has been voted upon cannot be reconsidered by voters for another [3] elections unless the library reverses the (un)availability or at least [50%] of voters sign a petition.

The Wall Street Journal link below describes many publishers refusing to publish a book by an award-winning author because that author was not the right race to author that book.  I find that objectionable, and it affects the book's availability not just its availability through public libraries.  My first inclination was that the publisher can choose what to publish.  The author in this case was able to find another publisher, and it is relatively easy to self-publish these days.   However, on further thought, this seems to be a situation of racial discrimination.

https://www.wsj.com/arts-culture/books/why-my-new-novel-about-racial-conflict-ran-into-trouble-53a53f54?st=XotXic&reflink=desktopwebshare_permalink  

Some minority authors say publishers won't publish their books if their writing is not related to their experience.  The following links might be of interest to you.

Diversity Syndrome: On Publishing’s Relentless Pigeonholing of Black Writers ‹ Literary Hub

Should Authors Write Characters Outside Their Race? - The Good Men Project

I wrote a book about Black queer joy and pain. It's already been banned in 10 states

Response to a classmate's posting on our college listserv

A Yale classmate wrote the following on our class listserv: “The right wing media juggernaut, oligarch money and voter suppression easily account for Trump’s victory.”

I responded as follows: 

I been a “never Trumper” for many decades but am a centrist who tries to credit each side for things they do well and criticize each side where appropriate (sadly most of the time).

Jeff, could you explain “oligarch money”?  Perhaps you are referring to the terrible idea of accepting an airplane from Qatar.  But I inferred you were talking about political donations.  Kamala Harris raised $1.994 billion compared to Donald Trump’s $1.453 billion, according to https://www.opensecrets.org/2024-presidential-race.  The left has lots of major donors.

As to the “right wing media juggernaut”,  my main news television station is CNN, which, while claiming to be independent, is strongly biased to the left.  Consider:

·        On May 14^th, Jake Tapper admitted he was wrong to hide President Biden’s cognitive difficulties.  That was proof of bias but a welcome suggestion that he (CNN?) wanted to improve.

·        That was followed immediately by a CNN poll that 76% oppose “major cuts” to Medicaid.  They railed about how terribly unpopular it is to make major cuts to Medicaid.  What if they had had the integrity to ask:

o   Do you think able-bodied people without dependents should qualify for Medicaid if they don’t, for at least 20 hours/week, work in a paid or volunteer capacity or pursue education?

o   Do you think people who qualify for Medicaid should continue to get benefits even if they no longer qualify?

·        The previous day, a guest speaker had said that President Trump’s “most favored nation” requirement for government payment for drugs was the same as President Biden’s approach.  CNN did not challenge that statement.  But President Biden’s approach empowered the government to set a maximum price.  If a manufacturer did not accept that price, it could be hit with an excise tax.  (See the progressive Kaiser Family Foundation.)  HUGELY different!

As regards “voter suppression”, where is the evidence?  If interested, you can read a blog I wrote several years ago:  Voting Laws and Voter Suppression.

I am active in the “No Labels” movement which encourages politicians to reach across the aisle and educates voters to try to protect those politicians who do so.  Both parties punish their politicians who do so.  We have great public webinars with outstanding guest speakers.  If you’d like more information, let me know or click here to register on No Labels website.

By the way, unlike Jeff, I entered and left Yale as a liberal (although I was disappointed that conservative voices were sometimes unwelcome at Yale even in that era).  Like Jeff, I taught in the Los Angeles inner-city upon graduation (Jefferson HS and Belvedere JHS).  I saw the same problems he did and supported bussing (which may be what he refers to as “worked for school desegregation”).  However, when I joined the union and participated in a teacher’s strike, I became uncomfortable with the union.  I’m a strong advocate of public charter schools, which the teachers’ unions fight tooth-and-nail.  It is tragic and unconscionable that we have wasted many generations of inner-city youth (of various races) and continue to do so by forcing them to accept inferior education.