The editors of the Washington Post leap to the defense of the practice of district judges issuing nationwide injunctions. After what I think is a pretty comprehensive review of the shortcomings of district judges’ injunctions only applying to their districts, e.g.
Imagine if a federal judge could grant relief from Trump’s order only to those involved in the lawsuits or in that judge’s district. It would mean that plaintiffs across all 94 district courts would have to battle for their constitutional rights as the president aggressively seeks to deport people. In other words, Americans’ constitutional protections could vary according to where in the country they live.
Yes, that’s exactly how our system of government is supposed to work. Otherwise the most conservative district judge in the country could impose his (or her) will on the entire country or the most progressive district judge in the country could impose her (or his) will on the the entire country mutatis mutandis. And that is precisely what has been happening with increasing regularity since the 1960s. I do not believe that is a course for good or even democratic government.
I agree with this assessment:
The purpose of the federal courts, of course, is not to set federal policy; it is to arbitrate disputes about the law. That the courts have become staging grounds for some of the country’s most contentious political battles is a symptom of deeper government dysfunction, stemming largely from Congress’s failure to address those difficult issues, and the executive branch’s increasing eagerness to bend laws to suit its own purposes.
but then they go a step too far, concluding:
Judges, as interpreters of the laws, must have the authority to stop the government from going too far — whether that is President Joe Biden wiping away billions of dollars in student loans or Trump invoking a centuries-old law to deport people without due process.
Justice Clarence Thomas noted during oral arguments, “We survived until the 1960s without universal injunctions.” This is correct, but America also survived for decades with this tool available to the federal court system. As the presidency becomes the ever-more-dominant branch of government, it’s one the country needs to retain.
The emphasis is mine. There is an obvious remedy and it is not to make district courts national tyrants. Restrain the power of the imperial presidency and the executive branch more generally. In my opinion the federal government should be one of limited, enumerated powers, restricted to the actual language of the Constitution.
There’s something else they’re ignoring. The Supreme Court does not hear enough cases and decides them too slowly. They are functioning largely as they did 200 years ago. The needs of a country of 330 million people and the accumulated laws and precedents of hundreds of years are not the same as those of a country of 6 million people and a relative handful of laws and precedents.
I would suggest that with the proper training a large language model computer program would be an excellent tool for judges, not excepting the judges of the Supreme Court.
I agree. The authority of the federal courts to interpret laws is incidental to their role to resolve “cases and controversies.” That’s Marbury v. Madison. “Cases and controversies” are defined through long-standing judicial doctrines such as standing and justiciability, as well as federal legislation that expressly creates causes of action.
Courts also don’t have power to enforce their judgments; they rely on the power of persuasion to encourage the executive to cooperate. Marbury never got his commission. The obvious forum-shopping for district courts delegitimates the court system, reducing their influence.
SCOTUS appears to be accepting fewer cases now that Trump is in office, probably so they can decide more cases on the so-called shadow docket.
Yes, restrain the POTUS. Unless you do this first POTUS has no effective limitations. To be clear, the circuit judges making decisions for the whole country is a problem but if you address that first I think you make things worse. I also agree that SCOTUS is too slow and takes few cases but we have zero leverage over them. They have lifetime positions and there is no effective means to make them change.
Steve
My recollection is that the Supreme Court historically got involved when two district courts came to different conclusions over the same law. One court would apply their ruling to the people in their district. Another court would apply a ruling in their district which contradicted the ruling in the other district. This is when the Supreme Court needed to step in. Now, district courts are applying nationwide ruling where they have never had the authority or precedent.
On the use of AI/ML in law.
Given the number of cases (which seems to be growing exponentially) where lawyer submissions got caught using LLM’s without checking for hallucinations; the use of LLM’s for lawyer submissions (with proper checking for hallucinations) must be common; and I would be shocked if LLM’s have not been used by judges (or their clerks) until now.
I suspect you’ll find that the uses have been on LLMs that have not been trained for the purpose. My speculation is that such training would be quite expensive.
So, yes, I suspect that some judges somewhere have used LLMs. The pertinent question is whether they have used them well and I would be greatly surprised if they have. My further speculation would be that there are major barriers to using them well, namely, that the judges don’t have the knowledge to do so and resent those who do.
I wrote my first paper on jurimetrics nearly 60 years ago. I haven’t kept up but I doubt it’s made a lot of progress since.