The Inherent and Supervisory Power

Abstract

Parties to litigation expect courts to operate both predictably and fairly, and depend on codified rules of procedure to constrain and make more predictable the range of judicial procedural options. Within the courts of this country, however, there is a font of authority over procedure that courts often turn to in circumstances when they claim that there is no written guidance. This authority, variously referred to as the “inherent” or “supervisory” power of courts, is an almost pure expression of a court’s exercise of discretion, in that it gives courts the ability to “do all things reasonably necessary” for the administration of justice. The sweeping nature of this power requires us to examine the role of discretion in the decisions of our courts, and to ask whether procedural goals of fairness, notice, and predictability can be met in circumstances when courts rely on their inherent powers. That said, the absence of such authority would present its own difficulties. Although courts should not be barred from using their inherent power, they should do so only after making two explicit findings: (1) why inherent power should be exercised (and, in particular, why it is necessary despite any relevant positive law), and (2) what standards the court is using to determine whether to apply that power in a given case.

Keywords: judicial decisionmaking; judges; inherent power