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

The efforts of Justices Sandra Day O’Connor and Stephen Breyer to provoke examination of the vitality of the American judiciary’s independence have inspired two conferences,1 which in turn have produced many thoughtful papers and much commentary. I have been asked to respond to one such paper offered by Professors Paul Carrington of Duke and Roger Cramton of Cornell.2 These two distinguished scholars see the Court as its own enemy, threatened by internal practices and changing relationships with state courts and the inferior federal courts. The authors decry this system because it enables, or at least facilitates, the Justices’ present roles as “superlegislators.” To their eyes, the Supreme Court is playing off the field, outside boundaries that, while hazy at their margins, have clear limits rooted in principles of separation of powers and judicial tradition. As the authors put it: “When judges assume the role of lawmakers, as when they impart principles into the Constitution that have scant textual base, or when they choose to disregard or stretch the text of valid legislation, they invite political accountability of the sort to which we subject our legislators.”3 Although Professors Carrington and Cramton fall short of providing a complete remedy, their proposal lends definition to the ills it would treat. The authors start by offering a brief history of the Court’s ascension. They then offer an example of superlegislation that they call “the absence of judicial independence caused by superlaw governing judicial elections.”4 They assert that “the Court has by its edicts made it virtually impossible for many states to assure the appropriate independence of their judiciaries,” finding “[t]he impact upon the elections of judges, state constitutions require in order