I've heard it said that it is very difficult for some terrorism-related laws like the Patriot Act or laws that allow warrantless dragnet surveillance of citizens to be fully challenged in the courts because it is difficult to prove that an individual has been specifically "wronged" by it.

However, if I understand correctly, the SCOTUS has the power of judicial review, which allows them to proactively audit the constitutionality of legislation passed by Congress. It seems like this could be the perfect antidote to the above scenario.

Why does the SCOTUS not do this when so many citizens question the constitutionality of these laws? Is there a petition process that an ordinary citizen could follow to request that SCOTUS perform such a review?

  • Because the law isn't Constitutionally questionable. – K Dog Jan 11 '17 at 16:46
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    " if I understand correctly, the SCOTUS has the power of judicial review, which allows them to proactively audit the constitutionality of legislation passed by Congress." You understand wrong. The U.S. Supreme Court's judicial review jurisdiction is limited to actual cases and controversies and is mostly appellate in nature. It is not the equivalent of a European "Constitutional Court". – ohwilleke Nov 2 '18 at 17:20

To the best of my recollection, the Supreme Court has never just "nullified" or even reviewed a law, without an actual case before it. Indeed, in order for the Supreme Court to have jurisdiction, there must be a case that has been heard at the circuit court level, and in most cases also at the appellate level. Technically, SCOTUS has no explicit power to "review" laws (check out Article III!) - rather it has the ability to decide on cases brought before it and the rest of the judiciary. If there is no case, there is no grounds for a ruling.

Indeed, the Supreme Court's power rests primarily on a finding of fact that it didn't have grounds to decide. In the famous Marbury v. Madison ruling back in 1803, SCOTUS specifically said the court did not have jurisdiction over the verdict that Jefferson opposed. In doing so, Jefferson was forced to agree with the Court on the areas over which it did have jurisdiction (much to his dismay), thus giving the Court power over judicial and not executive acts. More recently, Obamacare passed Constitutional muster only because the Court said that the plantiffs had no standing to challenge it, and thus that SCOTUS could not strike it down.

Legislative acts are creationary ones. They say "This is how we will do things." They only cease to have effect when they repeal their laws, when the Executive refuses to run them (e.g. DOMA), or when the Court says that they will not allow the Executive to enforce them. They cannot and will not pre-emptively say "This is unconsititutional." There has to be actual harm, an actual case, and only then can there be a "cease and desist" on this.

When someone with standing can show actual harm, then SCOTUS can get involved. Until then, they have to wait.

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    I think you got your rulings mixed up, Obamacare was upheld due to the commerce clause and right to tax, a ruling on the California gay marriage ban case was thrown out (in a poor decision imo) that only the state officials had standing to challenge the previous ruling not individual citizens. – Ryathal Aug 30 '13 at 12:56
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    Standing is just one of the many hurdles for judicial review – K Dog Jan 11 '17 at 18:59
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    The Supreme Court has original jurisdiction over all matters between two or more states and all cases affecting Ambassadors, other public ministers and Consuls. Though they have traditionally let district courts handle the latter, and changes to federal law gave the district courts concurrent original jurisdiction therein. So in practice the only cases that go directly to the Supreme Court are those involving disputes between two or more states. So, technically, a case does not need to go before a prior court to be heard by the Supreme Court; but they're rare (1-2 a term, maybe). – zibadawa timmy Sep 29 '17 at 5:20

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