Judicial "Power"

What is power? What are we saying when we say the court has no power to do something? What a farce that is! What we mean to say, really, is that there is no theoretical justification, that doctrinally, or according to a philosophy of law, there is not right to do something. But this is not based in realism, in an objective view of political power. All power is mere force. In the state of nature, the biggest man had the most power. This was not "right" of course, but it was the reality. Then we create government. But this was no more than an agreement among the majority to pool their power together. Thus it is really no different than in the state of nature. When we make legal arguments, we are trying to manipulate the system created by the majority that is setup to exercise its power in favor of he who makes the better argument. Sometimes that argument makes the correct assessment of the abstract principles that the majority set forth. Somtimes it is defective. But no matter--as long as the defect is subtle enough, the majority won't notice, the system won't notice. The only danger, of course, is yet another real danger that the majority will figure it out later.

Thus we need to be careful when we say things like "the judiciary has no power to do that." If it gets the executive branch to enforce its judgments, then that is all the power we are talking about. There is no sense in talking about power in the abstract. The only power that affects us is that power that the state actually exercises. And courts can influence that nearly as well with bad rationales as with good ones.