The Federal Judiciary Reconsidered

Our country is currently debating the nomination of Judge Alito to serve as the next Justice of the United States Supreme Court. It is an important political fight, because Judge Alito will, if he is confirmed, undoubtedly move federal jurisprudence, particularly in the politically charged area of constitution law significantly to the right.

But, this fight obscures an equally important larger story which also needs to be part of the liberal agenda. We have already lost the battle for the federal courts. The United States Supreme Court may be closely divided, but the federal judiciary is more conservative than that of almost any state in the Union. Bush the younger, Bush the elder, and Reagan have left their mark on the federal judiciary, and Presidents Clinton and Carter were less effective in blunting that mark than they might have been.

Conservatives are fond of reminding us that Congress has broad authority to set the jurisdiction of the federal courts, but their vestigal state court bias (from the civil rights era when the federal courts were more liberal than the segregation era state courts), has not been exercised systematically. For example, subject to certain exceptions, cases involving less than a certain dollar amount used to have to be tried in state court, even if they involved exclusively federal questions. But Republican members of Congress have largely limited their consideration of the issue to proposed rifle shot removals of certain classes of cases from federal court jurisdiction (most recently purporting to remove jurisdiction of Guantanamo Detainee cases from federal court jurisdiction) with a particular outcome on the merits in particular cases desired, and have often sought to eliminate all federal review of cases (including U.S. Supreme Court review) even in cases arising under federal law.

Liberals should rethink the extent to which cases are allocated to the federal courts, but should do so on a more systemic and principled basis that retains the fundamental notion that all questions of federal law should ultimately be reviewable in the United States Supreme Court.

On the criminal side of the docket, this means rethinking which crimes should really be federal crimes. In the most recent year for which statistics are available, 2002, there were roughly 72,000 people convicted of federal crimes (table 326). One-third of those convictions were for drug dealing (or manufacturing). Only about 3% were convicted of violent crimes. About one in seven were convicted of fraud offenses, and another one in seven were convicted of immigration offenses. A wide variety of other offenses (weapons, drug possession, larcency, regulatory offenses, and misdemeanors of all stripes) made up the rest.

There is no compelling reason that intrastate drug dealing, bank robberies (which make up a large share of the violent offenses, most of the rest occur on federal land or Indian Reservations), or intrastate weapons possession cases, which together make up about 40% of the federal criminal docket, should be federal offenses. It isn't as if these things don't violate state law.

Draconian federal sentences imposed at the whim of federal prosecutors (who usually defer to the milder state courts) for drug offenses only dimly related to interstate commerce are nothing for liberals to defend. And, the debates over medical marjuania and the right to die indicate the benefits of providing states with more flexibility in this area. Why should one end up in federal court if one robs a bank, but in state court if one robs a jewelry store? And, why should issues like whether a felon should be able to possess a gun in a particular state be an issue of federal law? What makes sense in Rhode Island may not make sense in Wyoming.

Such a shift would impose a relatively modest burden on state courts, which are already responsible for criminal cases which have put 91% of the people in prison and 99% of the people on death row. But, it would bring criminal cases into the more reality based state court criminal justice system (even Alabama recognizes the need to control prison expenditures through more sensible sentencing), and would put the hot button issue of urban crime into the hands of the people who live with it, jurors drawn from urban counties and judges selected for those counties (usually from the ranks of local county bars), rather than much larger jury pools used in federal court and politically appointed, frequently hard core conservative federal judges.

Similar considerations apply to civil cases. Through historical accident, for example, civil employment cases are tried to a great extent in federal court. These cases make up about 20% of federal civil cases other than prisoner's petitions (table 325). They are tried before federal judges, who are often conservatives hostile to the very idea that employees should be able to sue their employers, and before usually much less diverse juries than would be available in state court. Also, federal court is generally more expensive to bring suit in, if for no other reason than that 98% of civil suits are brought in state court reducing the pool of lawyers familiar with federal procedures. Why shouldn't liberals favor keeping federal employment laws on the book, but reserving them to state courts, subject only to U.S. Supreme Court review, except in intestate class action cases?

Likewise, why should diversity cases which make up around 40% of the federal docket, exist at all anymore, at least in intrastate cases? As I have noted before, a large share of these cases involve situations where diversity of citizenship is little more than a legal fiction, because an interstate corporation with widespread local operations happens to have a headquarters in another state. And, there are more important uses of federal judicial resources than insuring that an out of state driver doesn't get hometowned in a case arising out of an automobile accident with a local resident (usually with the same attendant inconvenience of having to hire a local lawyer and go to out of state court proceedings, and the same entirely hometown jury and state laws, as a state court). These changes, because most civil cases are already tried in state court, would have an even smaller impact on the states.

A major reduction of the scope of the federal court docket, would reduce the influence of an already conservative judiciary on cases with only dim connections to the nation as a whole, would reduce the extent of burdensome service on federal juries often much further from jurors homes, and would focus the resources of the federal courts on addressing those cases where the federal courts are most indispensible, cases arising out of the operations of the United States government itself, and cases, such as civil rights cases and habeas corpus cases, where the United States courts can act as an honest broker between local governments and their citizens in a way that local judges, who often depend upon those very local governments for their own funding, can not.