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PaperclipPerfector  10mo ago (text post)   34972 thread views

Culture War Roundup for the week of June 26, 2023

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Agreed. If we were designing the Constitution from scratch, I think it would actually be kind of difficult to come up with a convincing argument as to why we should have a case and controversy requirement for constitutional impact litigation in particular. The sweep of a SCOTUS decision is so vast in proportion to the individual plaintiffs that I'm not sure what practical effect it has other than to slow SCOTUS down -- but SCOTUS can do that directly via its ripeness doctrine, and it doesn't necessarily constrain SCOTUS if it wants to hasten its review (I believe it could choose to grant cert directly on appeal from a pre-trial motion). For the most part, it's easy enough to find or manufacture a case when there is the will to mount a challenge. There are the occasional scenarios where it isn't clear that anyone could have standing to challenge a particular policy, even in theory, but that strikes me as more of a bug than a feature, insofar as I'm not sure why we should want that particular class of scenarios to be immune to judicial review.

I think the particular cases that end up before SCOTUS are mostly just a quirk of fitting a square peg (Marbury v. Madison) into a round hole (a constitution that purports to forbid advisory opinions), and my baseline assumption is that those specific petitioners/cases are extreme outliers -- either manufactured or highly selected as vehicles -- and unlikely to be representative of the practical effect that the litigation is intended to produce. Such is the nature of systems that are evolved rather than designed, I suppose.

I think the particular cases that end up before SCOTUS are mostly just a quirk of fitting a square peg (Marbury v. Madison) into a round hole (a constitution that purports to forbid advisory opinions),

My vague impression was that, pre-Marbury v. Madison, when the constitution was being written, it was considered not unlikely that the court would do judicial review?

That doesn't seem quite right to me, because Federalist 78

argues quite ardently that judicial review is necessary to preserve individual rights.

Did you miss the double negative? I was saying that it was expected for there to be judicial review.

Yes I did, sorry.

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