Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.Reasons for increasing judicial power (Amar, pp. 216-218):
- Increase in SCOTUS size and creation of new courts
- Increasing number of statutes and regulations to interpret
- Improved reporting practices and professional standards for bench and bar
- Discretion over docket
- Additional constitutional amendments
After Congress passes law, the bureaucracy drafts rules:
Then the courts may act
Edwards v. Aguillard
Then the courts may act
See "The Lecture" around 20:00
Edwards v. Aguillard
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