Cornell Law Review Volume 94 Issue 3

Reining in the Superlegislature: A Response to Professors Carrington and Cramton

Unlike a traditional court of law in the Anglo-American legal world, the United States Supreme Court chooses the cases and issues it will decide.  It selects them from the many thousands of petitions presented to it annually, declining to decide all but a tiny percentage.  The Court is obliged to decide none.  In fact, it currently provides review in fewer than seventy cases each year, half as many as it reviewed three decades ago.  Professors Paul Carrington and Roger Cramton, in a wide-ranging survey of the federal judiciary’s transformation, see the Court’s unlimited discretion as having converted it into a “superlegislature.”  This development has given rise to public clamor for political accountability of the Justices, as though they were legislators, threatening the kind of judicial independence essential to a regime of law.  They have put forward a bold proposal to pull the Court back toward a law court model by sharply curtailing its discretionary choice of business and providing it with a large measure of mandatory jurisdiction.  In this Response, I critique their proposal.


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