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Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exericised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.
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Osborn v. Bank of the United States, 22 U.S. (9 Wheaton) 738, 866 (1824)

 

John Marshall

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I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.

 

Thomas Jefferson

 

Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, "Discretion under which standards?" or "Discretion as to which authority?"

 

Ronald Dworkin

 

[T]he constitution controls any legislative act repugnant to it. . . . It is emphatically the province and duty of the judicial department to say what the law is. . . . So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. . . . Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions . . . It would be giving the legislature a practical and real omnipotence . . . The judicial power of the United States is extended to all cases arising under the constitution.

 

John Marshall

 

At the same time that I think discretion the most useful talent a man can be master of, I look upon cunning to be the accomplishment of little, mean, ungenerous minds. Discretion points out the noblest ends to us, and pursues the most proper and laudable methods of attaining them: cunning has only private selfish aims, and sticks at nothing which may make them succeed. Discretion has large and extended views, and, like a well-formed eye, commands a whole horizon: cunning is a kind of short-sightedness, that discovers the minutest objects which are near at hand, but is not able to discern things at a distance. Discretion the more it is discovered, gives a greater authority to the person who possesses it: cunning, when it is once detected, loses its force, and makes a man incapable of bringing about even those events which he might have done had he passed only for a plain man. Discretion is the perfection of reason, and a guide to us in all the duties of life: cunning is a kind of instinct, that only looks out after our immediate interest and welfare. Discretion is only found in men of strong sense and good understandings, cunning is often to be met with in brutes themselves, and in persons who are but the fewest removes from them.

 

Joseph Addison

 

I was brought up under a system in which discretion when given was practically absolute. It was the unbroken tradition of Westminster Hall. I believe that system worked justice and saved expense. I hope I may be forgiven if, with what energy remains to me, I strive after many years' experience and drawing near the close of my judicial career, to preserve this unfettered discretion which in my opinion, was given me by Parliament, and which I have never, at least intentionally abused.

 

John Coleridge