[I]f the Secretary is to be allowed to thwart any review of his decisions by this piecemeal acquisition of right of way right up to the park, then the administration, the effectiveness of this statute is whittled away . . . Because, every time he has a controversial project it would be possible to box himself in, and to box the Court in and to present you with a fait accompli . . . .
Transcript of Oral Argument at 13, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (No. 1066). Although the case was reversed and remanded on other grounds, members of the Court were obviously wise to and repulsed by this conscious manufacturing of a statutory exception. During oral arguments, the Court grilled the attorney from the Solicitor Generals Office, inquiring:
And by the time the land was cleared, the only feasible route was through the park? . . . And so thats the end. . . . So then, in that case, the moving party here has no possibility of redress. . . . When were the contracts, or have the contracts been let? . . . The contract has been let, hasnt it? . . . This last month. You went ahead very, very rapidly . . . . Is that it? . . . Rather precipitously, if I may use the word. . . . So all we can do now is unring the bell.
Id. at 3234.
Serjaunte. . . . For moste commonly the Chauncellors of England have bene spirituall men, that hath had but superficiall knowlege of the lawes of the realme . . . I may lykyn my lorde Chauncellor, that is not lernyde yn the lawes of the Realme, to hyme that standith yn the vale of White Horse, fer from the horse, and beholdithe the horse; and the horse semythe and apperith to hym a goodly horse, and well proporcionede yn every poyncte. And then, if he cumme nere to the place where the horse is, he can perceive no horse, not nor proporcion of any horse.
St. German, supra, at 10102.
Equytye is a ryghtwysenes that consideryth all the pertyculer cyrcumstaunces of the dede / the whiche also is temperyd with the swetnes of mercye. And suche an equytye must alway be obseruyd in euery lawe of man / and in euery generall rewle therof / & that knewe he wel that sayd thus. Lawes couet to be rewlyd by equytye . . . . It is not possyble to make any generall rewle of the lawe / but that it shall fayle in some case. And therfore makers of lawes take hede to suche thynges as may often come and not to euery particuler case / for they coulde not though they wolde And therfore to folowe the wordes of the lawe / were in some case both against Iustyce & the common welth: wherefore in some cases it is good and even necessary to leue the wordis of the lawe / & to folowe that reason and Justyce requyreth / & to that intent equytie is ordeyned / that is to say to tempre and myttygate the rygoure of the lawe.
[Y]n what uncertayntie shall the kinges subgiettes stande whan they shalbe put from the lawe of the Realme, and be compellede to be ordered by the discrecion and conscience of oon man? And namely, for asmooche as conscience is a thinge of gret uncerteyntie . . . . And so divers men, divers conscience.
Id. at 101. Blackstone would later note that chancellors had bestowed upon themselves unlimited discretion partly from their ignorance of the law . . . partly from their ambition or lust for power . . . but principally from the narrow and unjust decisions of the courts of law. 3 Blackstone, supra note 84, at *433.
Equity is A Roguish thing, for Law wee have a measure know what to trust too. Equity is according to ye conscience of him yt is Chancellor, and as yt is larger or narrower soe is equity Tis all one as if they should make ye Standard for ye measure wee call A foot, to be ye Chancellors foot; what an uncertain measure would this be; One Chancellor has a long foot another A short foot a third an indifferent foot; tis ye same thing in ye Chancellors Conscience.
(1) He that will have equity done to him, must do it to the same person; (2) he that hath committed inequity, shall not have equity; (3) equality is equity; (4) it is equity that should make satisfaction, he who receives the benefit; (5) it is equity that should have satisfaction, he who sustained the loss; (6) equity suffers not a right without a remedy; (7) equity relieves against accidents; (8) equity prevents mischief; (9) equity prevents multiplicity of suits; (10) equity regards length of time; (11) equity will not suffer a double satisfaction to be taken; (12) equity suffers not advantage to be taken of a penalty or forfeiture, where compensations can be made; (13) equity regards not the circumstance, but the substance of the act; and (14) where the equity is equal, the law must prevail.
Id. at 1011 (altered for legibility and internal brackets removed) (quoting Richard Francis, Maxims of Equity, at iiiiv (1726)).
Equity . . . as it stands for the whole of natural justice, is more excellent than any human institution; neither are positive laws . . . any further binding than they are agreeable to the law of God and nature . . . . [A]s the rules of the municipal law are finite, and the subject of it infinite, there will often fall out cases which cannot be determined by them . . . .
1 Ballow, supra, at 8.
Unique situations can never have their answers ready made as in the complete letter-writing guides or the manuals of the art of conversation. Justice is not to be taken by storm. She is to be wooed by slow advances. Substitute statute for decision, and you shift the center of authority, but add no quota of inspired wisdom.
Cardozo, supra, at 134.
It can be of no weight to say that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGEMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.
The Federalist No. 83, supra note 128, at 540 n.* (Alexander Hamilton).