This is daunting. The problem of judicial supremacy is many problems stirred into one. Judges assert their supremacy over the legislative branch, re-legislating from scratch where they are not satisfied with the legislature’s considered settlement. But judges, who render judgment in particular cases and controversies between the parties before them, are ill-equipped to change the law generally and prospectively. Nor are they all accountable to the people for their decisions.
Judges today also assert their supremacy over the common law. For centuries, jurists understood the sources of obligation in the common law—natural law, ancient customs, acts of private ordering, and legislation—to bind the deliberations and judgments of courts. Judges did not make the law, they declared the law and specified remedies for wrongs committed in contravention of the law. But since the pragmatic turn begun by Oliver Wendell Holmes, Jr. and carried into legal education by the legal realists in the early twentieth century, scholars and jurists have reconceived common law as judge-made law. The result: law is what judges say it is.
Judges even assert their supremacy over constitutions. Courts could more credibly serve as final authorities on the meaning of constitutions if judges searched for and followed the original meaning of constitutional terms and propositions. Instead, in a growing number of important cases, judges perform amateur philosophy. Their judgments are motivated by the “mystery of life,” by confused notions about the public significance of fundamental civic institutions, and by “charter values” that are not enumerated in charters but appear to emanate from the judges’ own sentiments.