A Few Thoughts on Judicial Supremacy: A Response to Professors Carrington and Cramton

A Few Thoughts on Judicial Supremacy: A Response to Professors Carrington and Cramton
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A Few Thoughts on Judicial Supremacy: A Response to Professors Carrington and Cramton

Hon. Patrick E. Higginbotham

94 Cornell L. Rev. 637 (2009).

    Regarding the vitality of the American judiciary’s independence, Professors Paul Carrington and Roger Cramton see the Court as its own enemy.  They believe judicial independence is threatened by internal practices and changing relationships with state courts and the inferior federal courts.  To their eyes, the Supreme Court is outside boundaries that have clear limits rooted in principles of separation of powers and judicial tradition.  

    Although Professors Carrington and Cramton fall short of providing a complete remedy, their proposal lends definition to the ills it would treat.  According to these professors, much of the change in the inferior courts is linked to the Justices’ alleged roles as platonic guardians of constitutional values detached from the mundane daily duties of examining facts, applying law to facts, and explaining decisions.  Their proposal would therefore withdraw much of the discretion of the Supreme Court to choose its own cases.  

In assessing this proposal, it is necessary to consider what would result from such a withdrawal.  Answering this question requires identification of the forces that have shaped the present model of a case or controversy.  Identification would allow examination of the assertion that much of the judiciary’s change in shape is attributable not just to decisions of the Court, but to its decisions enabled by its power to decide what to decide.  Additionally, it is necessary to further inquire into the effect of two congressional acts that tasked the judiciary with broad-gauged assignments as well as Supreme Court decisions that effectively turned back the ombudsmen-like roles that Congress would have had it assume.  Only then can the proposal of Professors Carrington and Cramton be properly assessed.

Keywords: Professor Paul Carrington, Professor Roger Cramton, American judicial independence, separation of powers, United States Supreme Court, Constitution, constitutional principles, superlegislation, inferior federal courts, constitutional values, delegation, arbitration, decline of trials, Federal Rules of Civil Procedure, Rule 8, Rule 56, judicial discretion, mandatory jurisdiction, judicial power, judicial lawmaking, Article III judges, Evarts Act, Judges Bill of 1925, constitutional interpretation, judicial review, summary judgment, fact pleading.



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