Current streaming news indicates that Justice Clarence Thomas wants to "go after" OSHA. Can the court do this ad hoc without cases regarding OSHA being argued in front of them for a decision?
3
-
6This question is similar to: Why can't federal courts issue advisory opinions?. If you believe it’s different, please edit the question, make it clear how it’s different and/or how the answers on that question are not helpful for your problem.– alexgCommented Jul 3 at 16:31
-
law.stackexchange.com/questions/95606/… also covers the same ground– alexgCommented Jul 3 at 16:32
-
Just to clarify, you mean to go after OSHA directly, correct? Loper v. Raimondo absolutely hurts OSHA, but only in the same sense that it hurts Federal agencies broadly.– Michael W.Commented Jul 3 at 17:14
Add a comment
|
2 Answers
As the other answer says, SCOTUS can't do this on its own.
However, the mere act of expressing this opinion is likely to prompt others to bring relevant lawsuits to court, and these may be expected to be appealed up the line. So by stating that he wants to go after some agencies, he's setting the ball in motion that could eventally lead to this. It also acts as a warning to the agencies that they should avoid any actions that invite such lawsuits, because SCOTUS will be receptive to them.
You can see something similar in the aftermath of Dobbs, when they wrote that they would also like to have the opportunity to revisit earlier decisions on contraception and gay rights. So we can expect such cases to come up.
-
1The problem with this idea is that Justice Thomas seems to inhabit a parallel dimension in which the law is entirely different from what everyone else seems to think it is (you can see this by reading any of his recent-ish dissenting opinions, and noting that most of his citations are to his other dissents). Just because Thomas thinks that something can be overturned, it does not necessarily follow that it will be overturned, unless another justice signs on (preferably, someone other than Alito).– KevinCommented Jul 4 at 5:56
-
Justice Clarence Thomas seems to have written this opinion in his dissent on taking a case. Given that the case wasn't taken and only two judges wanted to take it, it's unlikely to motivate people to bring cases. On the other hand, it's great news for the news media, who wants a story about how conservatives are "threatening democracy". Commented Jul 4 at 7:55
-
1@Christian I don't know what the actual context was, but any opinion expressed by a Justice should be taken seriously, regardless of where it was written. So unless the cases he'd like to see are extremely similar to the one they refused to take up, I don't see how this context is relevant.– BarmarCommented Jul 4 at 18:24
-
@Christian Thomas has been doing this sort of thing for years, and conservatives have been eagerly following his bread crumbs for just as long. This is signaling, plain and simple. "I want these cases. I think they have these problems on these issues/grounds." WINK WINK. Commented Jul 5 at 9:28
-
@Christian And in some cases this has worked. They got their chance to kill Roe, this week they killed Chevron. Who knows what will be next to topple?– BarmarCommented Jul 5 at 14:34
No
SCOTUS is restricted in that they may only weigh in on "live and actual controversy" because Article III only gives the power to rule in cases. Not as advisors, not prophylactically, not for the future or because I want. There has to be a case/controversy first, and that needs to be appealed up to SCOTUS. And then they can not rule on things only tangential to the case at hand either.
Unless there is an OSHA case pending that is trying to get at OSHA's rulemaking, Justice Thomas can yell all he wants, he may not rule in a nonexisting case, and as far as I know, SCOTUS rejected hearing an OSHA Case yesterday. The denial of Cert is even part of yesterday's order list, with only 2 out of 4 required justices voting to hear the case:
The petition for a writ of certiorari is denied. JUSTICE GORSUCH would grant the petition for a writ of certiorari.
JUSTICE THOMAS, dissenting from the denial of certiorari.
-
1+1 Worth noting also that because SCOTUS jurisdiction is so narrow, the court would also have to wait until such a case reached it on appeal. A like-minded plaintiff couldn't just bring an OSHA case directly to Thomas and the rest of the court.– bdb484Commented Jul 3 at 16:35
-
1@bdb484 actually added more than that: They just denied Cert on an OSHA Case yesterday– TrishCommented Jul 3 at 16:36