From the legal realist perspective, one might say that the courts qua sovereign are not constrained by law and so they are simply exercising their power under the guise of law. But even the

“From the legal realist perspective, one might say that the courts qua sovereign are not constrained by law and so they are simply exercising their power under the guise of law. But even the most hard-line legal realists contend only that the courts are not constrained by law, not that courts are unconstrained. For realists, constraints on the exercise of legal power result from sociology and politics. Judges, for example, may feel themselves bound to act in one rather than another way because of the norms of their profession, including a norm that a judge must understand his or her decision to follow from law rather than mere power. They might be selected through political processes that significantly limit the range of preferences judges have, so that when they simply exercise their sheer power they do so for relatively conventional ends.”
Mark Tushnet, “The Political Constitution of Emergency Power,” in Victor Ramraj ed., Emergencies and the Limits of Legality (Cambridge: Cambridge University Press, 2007)., pp 150-151.
In the first sentence, Tushnet summarizes the legal realist perspective in relation to courts, saying:
Courts are always limited by law.
Courts are often limited by law.
Courts are sometimes limited by law.
Courts merely pretend to act in accordance of law.
In the second sentence, Tusnet characterizes hard-line realism as claiming:
Courts are wholly unconstrained.
Courts are bound by weak legal constraints.
Courts are not bound by law but they are not unbound.
Courts are always bound by law and other non-legal factors.
In the third and fourth sentences, Tushnet offers an explanation of the judicial role, suggesting:
The judicial role is not defined by anything specific.
The judicial role is shaped by social and political patterns of practice that govern the judicial profession.
The judicial role is defined by whether a judge feels like following what other judges do.
The judicial role is shaped by whether the judge is morally good.
In the last sentence, Tushnet attributes to judges something he calls “sheer power,” meaning:
The judge’s power is absolute.
The judge’s power is weak.
The judge’s power is strong but not absolute.
The judge’s power is fake.

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