Pre-emptive review of laws by the Supreme Court

The Government of Canada is preparing new legislation to allow same-sex marriages. Apparently, the Supreme Court will be provided with a “draft version” of the new law and will be asked to issue a legal opinion on it (especially with respect to its constitutionality). After incorporating the Supreme Court’s feedback, the (revised) law will then be sent to Parliament for passage*.

My question is whether the Supreme Court of the USA is also asked to play such a role? In a way, it almost seems inappropriate for the Court to get involved in this way. Shouldn’t it be up to the legislators to draft laws, and not the SCOTUS (or SCOC)

[sub][sup]*Here’s a cite, and here is the relevant passage:

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My understanding is that the SCOTUS does not issue advisory opinions because Article III of the US Constitution limits the SCOTUS to rendering opinions on cases or controversies.

No case or controversy = no opinion.

I believe (and I don’t have a source on this right now. I think it’s “The People’s History of The Supreme Court” by Peter Irons, the framers considered pre-emptive review of laws by the court, but rejected it.

The U.S. Supreme Court requires a real interest to be present in order to render a decision.

Findlaw discusses this issue and links to numerous cases where parties were rejected in attempts to have the Supreme Court render decisions on laws without an actual dispute being present.

What they said. The U.S. Supreme Court can’t issue advisory opinions on the constitutionality of federal law, nor can they issue a judgment where there is no Case or Controversy where there is not a plaintiff who is or will be directly and personally injured by a defendant in violation of the Constitution or federal law.

According to John R. Gunderson in the “Advisory Opinions” article in The Oxford Companion to the Supreme Court of the United States, George Washington asked the Supreme Court in July 1793 for an advisory opinion on 29 questions related to our 1778 treaty with France, with reference to privateering. In early August, the Court formally declined, explaining that its role as a court of last resort prevented it from rendering such opinions until an actual case or controversy suitable for rendering an opinion arose.

The Courts have from time to time construed what “a real case or controversy” amounts to quite liberally – Carter v. Carter Coal Co. being a good example. (In that case, the chief stockholder and president of a company sued the company he ran to prevent it from complying with a law that he considered unconstitutional, his standing being that he stood to suffer financial loss from the company’s obeying the law.

The case or controvery requirement is part of the U.S. Constitution and therefore applies only to the federal courts. There are a few states which do not limit thier courts in this way – the Supreme Court of New Hampshire, for instance, issues advisory opinions on certain newly-passed state legislation.

–Cliffy

Thanks to all. Very informative.

Personally, I like the idea that the SCOTUS is never at risk of being overwhelmed rendering anticipatory decisions. It’s involvement should never be simply in response to the gov’t of the day. Rather, waiting for ‘case or controversy’ seems a better use of its time and power.

Although Canada doesn’t have a constitutional “case or controversy” rule, in practice the courts have discretion to refuse to answer references if they conclude that the questions posed are too general or there is insufficient evidence to allow a decision to be made. See the Reference re Goods and Services Tax for an example - the Supreme Court declined to answer one of the questions on these grounds.

As well, because a reference is such a high profile matter, they tend to be used only for very serious questions, where a legal point, normally of a constitutional nature, is definitely in dispute, and there are parties on both sides of the issue. Reference re Firearms Act (Canada) is a good example, where the federal government and some of the provinces had very defined positions and a clear difference of opinion over the constitutional issue.

Another point is that because the reference can be asked in advance, it can be used in cases where it might be difficult just to wait for a regular court case to come up. The best example of that was the Patriation Reference, [1981] 1 S.C.R. 753 [no online cite that I can find] which was actually three separate references. Prime Minister Trudeau had announced that the federal Parliament would pass a resolution implementing fundamental constitutional chages, with or without provincial consent. Three provinces (Newfoundland, Quebec and Manitoba) responded by referring the patriation issue to their provincial courts of appeal, with subsequent appeals to the Supreme Court of Canada. That approach enabled the provinces to require the federal government to justify, in law, its proposed course of action before it went ahead and tried to make fundamental constiutional changes on its own initiative. Ultimately, the decision of the SCC forced a compromise on all the parties.

If the courts could only rule after the fact, once an amendment had passed by the British Parliament in response to the federal request, it could not have been reviewed by the courts. What would that have done to the political legitimacy of the new constitutional provisions, such as the Canadian Charter of Rights and Freedoms?

A similar example of the reference process being used to get guidance in advance was the Reference re Secession of Quebec. There were all sorts of uncertainties about the constitutional issues raised by the possiblity of Quebec secession. Which is better: to try and resolve those uncertainties in advance, so everyone knows the ground rules, or to have to deal with them on the fly, during a post-referendum period, without much chance of getting a judicial ruling in time?

Overall, it’s arguable that the reference procedure has increased the accountability of the government, by ensuring there is a way to get judicial review of matters that ordinarily would not get into court in time. For example, because of the difficulties of “undoing” a constitutional amendment, I understand that the U.S.S.C. has stated that the validity of constitutional amendments are a political matter, not a judicial matter. In Canada, the power to get advance rulings from the courts on such issues means that is not the case here, at least to the extent indicated by the Patriation Reference and Reference re Secession of Quebec.