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way to what might arguably be deemed a conspiracy to permit systemic violations of the
Constitution.
III.
The Court’s Recent Un-enumerated Rights Jurisprudence Exacerbates
the Judicial Supremacy Problem.
As troubling as the case I have just presented might be, the problem is actually
much worse than I have described. The title of this paper suggests that the problem of
judicial supremacy is made worse by the Court’s recent un-enumerated rights
jurisprudence. In a certain sense that is correct, but I prefer to place the principal blame
with Oliver Wendell Holmes and the triumph of his life’s mission (or at least one of
them) in Erie R.R. Co. v. Tompkins
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than with Earl Warren and any number of decisions
that were imposed on the country by the Warren Court.
To be sure, the Warren Court’s journey to the land of penumbral emanations from
un-enumerated rights allowed it to lay claim to a supremacy never envisioned by Chief
Justice Marshall in Marbury. No longer need the Court point to some provision of the
Constitution as authority to invalidate an act of Congress or of a state legislature; it was
enough if the act offended the Court’s own evolving sense of fairness. The transfer of
power occasioned by the Warren Court’s methodology from legislature to the courts, and
even more fundamentally from the people to unelected judges, should be manifest.
As I noted in the introduction, though, we have long acknowledged a role for the
courts in giving effect to certain fundamental principles of justice, even if those principles
72
304 U.S. 64 (1938).
Convention