Hunter v. United States · ¶116

The Court “has been remarkably vague about the source of its supervisory authority.” Id., at 333. The Court's first exercise of this power came in McNabb v. United States, 318 U. S. 332 (1943). That decision asserted that this Court can “formulat[e]” rules for lower courts based on “considerations of justice not limited to the strict canons” of the law. Id., at 341. This new assertion of power looked nothing like traditional, unwritten procedural law, in which judges merely applied rules whose content had long been settled by common- law authorities. Instead, when the Court exercised this new supervisory power, it “self-consciously formulate[d] its own standard.” Barrett, 106 Colum. L. Rev., at 376.As legal justification for this novel approach, the McNabb Court provided an analysis-free string cite of prior decisions, but none of them provided for anything like the modern supervisory…

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