State and Federal Supreme Courts should be able to conduct judicial review with no underlying case

I think that for situations like Mississippi’s abortion law, State and/or Federal Supreme Courts should be able to conduct judicial review without an underlying case or the necessity to prove standing.

My reasons for this are:

The goal of keeping the courts out of politics has already failed. Not only are supreme courts extremely political, political activists on the most hot-button issues have effectively distributed their supporters throughout court systems as though they are politicians at every level of the court system. For high-profile cases pertaining to things like abortion, activists don’t even try to hide that they deliberately construct cases and game out how to engineer the ability for the relevant court to set the precedent they want.

Given that the courts are already political:

We don’t need to spend this long with legally unclear laws and policies on the books. Whether the abortion law is actually constitutional, it doesn’t need to hang in limbo for over 2 years while we go through the kayfabe of court process. If it is unconstitutional, Mississippi shouldn’t be allowed to ban abortion for years because we are play-acting the idea of a court case. If it is constitutional, other states that want to ban abortion should know what the rules are for them.

EDIT: Got this the wrong way around, since initial court rulings went against the ban.

Having to jump through all the hoops to get a case that can be ruled on by an SC is going to select for the wrong things. For an issue as high-profile as abortion everyone knew that both sides were going to get top-notch lawyers, the groups would know how to check all the boxes, establish standing etc. What about cases with marginalized victims who don’t have the same organizational support?

If the courts aren’t nimble enough to act quickly, the result is unchecked executive power. We’ve seen this with numerous presidents. Even when they violate the constitution, the courts move so slowly against them and they will always be more nimble than the courts, so that the spend more of their time doing whatever they want than actually having to work with the constitutional constraints. Even Trump as incompetent as he was was able to do this. Allowing swifter judicial action doesn’t solve this completely but I think it alleviates it considerably.

Of course there are all the traditional reasons why the courts usually demand standing on an issue: so the courts won’t be flooded with hypotheticals; and because in the common-law system the USA inherited from Britain, it’s important for a court decision to set as narrow a precedent as possible. For example, one reason why the Dred Scott decision was criticized so strongly at the time was because rather than rule against Scott on any of a number of narrower reasons, the Taney court used the case as an occasion to set out a grand thesis on the place of Negroes and slaves in American society and law.

What I want to happen is 99% of the time things go through the normal court process and I agree that we need standing so that the courts don’t get flooded with cases that effectively have no real-world impact, but if something like an abortion law gets passed that everyone knows is going to turn into a SCOTUS ruling, the SCOTUS should be able to just put a direct judicial review of that law on their docket rather than having to wade through the court system.

In Canada, there’s the “reference procedure” that allows the government to ask the court for its opinion on constitutional matters directly, without the need for standing and a string of appeals.

And it’s not limited to constitutional questions; can be other legal issues, such as the question of Milgaard’s conviction.

I agree with the OP that even hypotheticals should be Supreme Court reviewable because of the “chilling effect” that a blatantly unconstitutional law can have during the period between when it becomes law and when it is officially overturned.

Imagine if, say, Mississippi passed a blatantly unconstitutional law saying “Black people shall not have the right to vote, and those that try to do so will be imprisoned for 5 years.” How long is it going to take the Supreme Court to strike down that law? Well, if it goes through the formal pipeline, maybe, idk, a year. But such a law, passed a few weeks before Election Day, could successfully squelch the black vote in time for that election’s outcome to be skewed.

The Supreme Court ought to be able to smack down that law within days or hours of it being passed.

That’s what the lower federal courts are for. They can act far more expeditiously than the Supreme Court, at the local level. If such a law were passed in that situation, Black voters could get an emergency hearing from the local federal courts very quickly, and they have the power to enjoin the operation of the law pending full review.

If the Supreme Court had the sort of original jurisdiction being proposed, it would quickly get overwhelmed by applications from all over the country. There are only 9 Supreme Court judges; over 650 district court judges.

Where would the court be getting its facts from if it sucked up a new piece of legislation without any trial procedure? One thing that happens in the trial process is that evidence is presented. Evidence is pretty important in judicial review.

Would Brett Kavanaugh just be down at the neighborhood knife shop looking for a match for the murder weapon like Henry Fonda did in 12 Angry Men, or what?

Congress and the several states still have the power to establish dedicated chancery courts, I think.

You won’t be able to change the federal jurisdiction to include advisory opinions without an amendment, because of the “cases and controversies” clause.

Regarding speed, the Mississippi case, to my knowledge, correctly involves a lower federal court’s injunction until the Supreme Court rules. For something like an election law the lower courts will act very quickly, and sometimes the upper courts will act quickly on expedited appeals. See litigation about mail-in ballots in 2020.


This is an important point. The Supreme Court is an appellate court. It only rules when evidence has been presented on the case and proved at the trial level. It has no capacity to hear evidence and make findings of facts, yet that would be essential for any constitutional case.

The US Supreme Court is mostly an appeal court, but there are still a few categories of cases that start off in the Supreme Court immediately.

And it should be remembered that Judicial Review itself is never even laid out in the Constitution, so the procedure for it certainly can’t be.

Yes, and for those original jurisdiction cases, the Supreme Court always delegates the fact-finding function to a special master, who conducts hearings, listens to evidence, makes preliminary findings of facts, which are then filed with the Supreme Court, before it ever hears any argument on the legal issues. Original jurisdiction does not mean “quick”.

And, it would take a constitutional amendment to give the Supreme Court the type of original jurisdiction being considered. That was the actual point in issue in Marbury v Madison - Congress cannot expand the original jurisdiction set out in Article III. The Court struck down the provision of the Judicature Act which purported to give the Supreme Court a mandamus jurisdiction.

What’s more, we aren’t really talking about just original jurisdiction in this thread. We’re talking about review in the absence of a case being brought at all. The fact-finding concerns go beyond the Supreme Court simply not being a trial court.

I always thought it was kind of funny that in one of the most consequential SCOTUS cases in US history, congress tried to give the courts more power and the courts used their power to preven that (and I think Marbury is overall a good thing, I would just advocate for an update given the political reality we live in in America).

Regarding controversial election policies, I actually don’t think the answer is immediate supreme court review - the answer is preclearance which is why we really need the John Lewis Act at a minimum. The idea that election policies get a fast enough judicial review is very clearly not true. Just looking at the recent Arizona case, that was for a law that was passed prior to 2016. Arizona got to run 3 elections with that law before it was given a final determination by the SCOTUS.

And yeah, the whole point is that in a small subset of policy actions, the SCOTUS would be able to rule on the constitutionality of a law and/or set precedent without any actual court case. I’m curious how it works in Canada and if it winds up being a net benefit.

And again using this abortion case as an example, the entire point of the law and subsequent litigation is just about whether a law that violates previous SCOTUS precedent will be allowed this time. The day the governor signed it everyone including judges up and down the court system knew that the court process would be an inherently political process where policy choices made by the SCOTUS would be reconsidered. I don’t think there is any need to keep up the kayfabe when everyone knows what’s actually going on.

In a typical case where you have to figure out whose fingerprints are on the murder weapon, the SCOTUS shouldn’t just jump out and supercede normal trial process.

The federal Cabinet can refer any legal issue to the Supreme Court. The provincial Cabinets can refer any legal issue to their provincial Courts of Appeal. It is primarily used for constitutional cases, particularly on the relationship between the powers of the federal government and the provincial governments, although it also can be used for Charter of Rights matters.

However, it is not quick. Once the Order-in-Council is filed with the SCC, it’s treated just like any other appeal. The difference is that the federal government and whoever the other party is, have to file extensive factual records, which can take a long time. Those factual records are the substitute for the trial process. Those factual records have to contain material that is generally non-controversial, because the SCC is not a trial court. If the facts underlying the issue are controverted, then it’s generally not fit for the reference procedure.

The Reference re Same-Sex Marriage was an example. The issue was pretty straightforward: did the federal Parliament have the constitutional authority to implement same-sex marriage, and if it did, how did same-sex marriage relate to the rights of clergy who were personally opposed to it? Also, would it infringe anyone else’s Charter rights? The SCC heard from numerous parties and then delivered its decision some months later.

So, not a good model for an emergency type situation, especially if the facts are in dispute. That’s what trial courts are for.

Yeah, I’m not saying it would reduce the time it’s on the docket for a supreme court, or for the court to deliberate on it. I think:

A - it would reduce the time it takes to work its way up through lower courts.

B - when unconstitutional policies affect people who don’t have the resources or the organizers behind them the way an issue like abortion does, they might just fail to navigate the court system due to lack of expertise and never get a ruling on the policies that affect them.

So where would the court get its facts from?

But why the focus on the Supreme Court? The district courts can give exactly the same remedy as the Supreme Court, and can give it faster than the Supreme Court. If the concern is a quick remedy in the run-up to the election, why not rely on the District Court, which is local and more accessible than the Supreme Court?

Are you suggesting that the Court itself could just reach out to review a situation, even if no party brings any action?

Yeah, for quick stuff like elections it doesn’t make any sense (and like I said above, any court procedure could be too slow which is why we need to reintroduce preclearance).

I’m thinking of cases where what really matters is the precedent that lower courts are ultimately not going to be responsible for.

The triggering event in my mind would be the moment a new law is passed that the court already knows enters murky territory.