I made an observation in another thread about mandating vaccines that it would probably be a good idea for those who are for the idea of mandating vaccines, that its constitutionality should first be judged. As I saw it people did have the right to refuse medical treatments and that includes refusing a vaccine.

If the constitutionality of this issue would be tested by SCOTUS is it required that some sort of litigation must precede it? Do you first need some sort of government agency that wants to do it, someone who objects and then for this issue to go to court or can a civil rights group ask for a judgment before it is actually enacted?

Can courts make judgments like this or do they not handle hypotheticals or judge the constitutionality of things that might one day occur?


3 Answers 3


The Supreme Court does not handle hypotheticals.

The court has interpreted Article III Section 2 Clause 1 of the Constitution, the Case or Controversy Clause as a limit on the powers of the judicial branch. The courts have jurisdiction over various types of cases and controversies but only those listed in the Constitution. This limits courts to hearing actual cases and prevents them from issuing advisory opinions.

Additionally, in order to bring a case, the plaintiff must have standing to bring the suit. You can't sue the government just because you don't like a law (well, you can, your suit will just be dismissed because it lacks standing). You have to show

  • That you have been, or will imminently be, injured (injury-in-fact)
  • That there is a direct correlation between that injury and the law (causation)
  • And that a favorable court decision will redress the injury (redressability)

As a practical matter, the courts are already overwhelmed by the number of actual cases that come up and the Supreme Court can only hear a tiny fraction of the cases they are asked to hear. If they added the ability to hear hypothetical cases as well, the court could easily be overwhelmed by Senators and Representatives asking them to weigh in on every remotely controversial bill or amendment before Congress or interest groups bringing cases for speculative grievances.

  • So ultimately the hearing of a constitutional matter is not one of right.
    – Neil Meyer
    Commented Aug 17, 2021 at 10:24
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    @NeilMeyer a plaintiff has a right to bring constitutional matters before a district court and, if the district court decides against the plaintiff, a right to appeal to the appeals court. Any court can find a law to be unconstitutional. Lower courts' jurisdiction is limited in geographical scope, but that doesn't affect most plaintiffs.
    – phoog
    Commented Aug 17, 2021 at 14:02
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    It is worth noting that state courts can, and do, issue advisory opinions based on state law. For example, in 2004 the Supreme Judicial Court of Massachusetts answered questions from the MA Senate asking whether a bill involving civil unions would violate the MA constitution. See: See: archive.boston.com/news/specials/gay_marriage/sjc_020404
    – Just a guy
    Commented Aug 17, 2021 at 15:07
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    Not just injury in fact, but particularized injury. You can't sue the government on the basis of alleging that a budget item is a waste of your taxpayer dollars. Commented Aug 18, 2021 at 23:02

If the constitutionality of this issue would be tested by SCOTUS is it required that some sort of litigation must precede it?


Unless there is an actual case or controversy within the original jurisdiction of SCOTUS (mostly lawsuits between U.S. states over boundaries and water rights), every case the comes before SCOTUS has previously been ruled upon by a trial court and either one of the U.S. Courts of Appeals, the U.S. Court of Military Appeals, a territorial supreme court, or the highest court of a U.S. state (a handful of cases, mostly involving election law, are decided by three judge panels at the trial court level that rule on constitutional questions, and appealed directly to the U.S. Supreme Court from there).

In cases raising a constitutional issue, therefore usually have two previous rulings (or often three in appeals from state courts with their own intermediate appellate courts) on the constitutionality issue originally raised in the trial court (or administrative proceeding that concludes with an appeal directly to an appellate court).

Critically, the U.S. Supreme Court is not the only court in the U.S. that can determine that a statute or practice is unconstitutional.

Basically every court in the United States from traffic court to state and federal trial courts to intermediate appellate courts and state supreme courts to the U.S. Supreme Court has the right and the obligation to declare a right or practice that is clearly unconstitutional that comes before it to be unconstitutional if a party to the litigation raises the issue in a timely manner.

The U.S. Supreme Court may decline to revisit the decision on the constitutionality of a law made by a lower court, and in that situation, the lower appellate court (or in rare cases such as some election law cases, lower trial court) ruling stands, but has precedential effect only in the territory subject to that lower appellate court's jurisdiction.

This allows other lower appellate courts with a different territorial jurisdiction to consider the constitutional issue afresh in its jurisdiction and possibly reach a conflicting result.

Often, the U.S. Supreme Court will resolve a split of authority on the constitutionality of a law between lower appellate courts with different jurisdictions, but it often doesn't do so right away, allowing a variety of perspectives on the issue to develop in the courts before it established a uniform national rule on whether a law or practice is constitutional.

Do you first need some sort of government agency that wants to do it, someone who objects and then for this issue to go to court or can a civil rights group ask for a judgment before it is actually enacted?

Can courts make judgments like this or do they not handle hypotheticals or judge the constitutionality of things that might one day occur?

There is a requirement in federal courts including the U.S. Supreme Court that there be an actual "case or controversy" and that the party bringing the suit has "standing" which means an injury in fact to a legally protected interest that is distinct and particularized from the injury to other citizens or taxpayers.

When a civil rights organization brings a lawsuit, it needs to either itself be directly affected as an organization or to have a member of the organization or test plaintiff represented by the organization bring suit to invalidate the law.

A constitutional issue can also be raised by a defendant as a defense to a lawsuit or criminal prosecution seeking to enforce an unconstitutional law.

A federal court can not rule in a merely hypothetical case.

But some state supreme courts are granted that authority, for example, following a petition from the Governor or the state legislature, under a state constitution, typically to apply the state constitution, although federal constitutional issues may be intertwined with state constitutional issues.

Sometimes, the "chilling effect" of being subject to an unconstitutional criminal law is sufficient to have a court issue a preliminary injunction preventing the law from being implemented until the court system determines the constitutionality of the law without actually being charged with a crime, if the individual would be likely to be prosecuted for the crime if it was in force.

Similarly, a public official could, for example, bring a declaratory judgment action in the appropriate trial court, stating that the public official is forced to take some action and doesn't know whether the public official should take the action required by a possibly unconstitutional law, or the action that the public official would take if the law were constitutional, and asks the court what to do. This is still an actual case or controversy because some action must be taken that hinged upon the validity of the law.

Most states rules of procedure and federal procedural law in most cases, requires that the attorney general be given notice of a claim that a statute is unconstitutional and an opportunity to intervene in the case with respect to the constitutionality issue if it is raised.

If the attorney general given notice agrees that the statute is unconstitutional, the court will typically appoint someone else to serve as an attorney arguing as a devil's advocate for the validity of the law in addition to the attorney general in the case, to inform the judge's decision, if it is a novel issue not governed by clear prior precedents.


As the answer by Justin Cave correctly says, the US Federal courts will not hear a suit seeking to overturn a law as unconstitutional unless there is an actual case, with parties that are actually opposed in interest, brought by someone with standing, who is actually harmed or threatened to be harmed in a significant way by a law.

Moreover, since in In Jacobson v. Massachusetts, 197 U.S. 11 (1905) the US Supreme court held such mandatory vaccinations to be constitutional, no lower federal court can or will overturn that decision, even if it thinks the facts have changed or the prior decision was wrong. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)

[d]espite . . . Albrecht’s "infirmities, [and] its increasingly wobbly, moth-eaten foundations," . . . [t]he Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court’s [SCOTUS] prerogative alone to overrule one of its precedents.

in National Coalition for Men v. Selective Service System No. 19-20272 (5th Cir. 2020-08-13), The Fifth Circuit wrote;

Here, as in State Oil Co., the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent. See also Roper v. Simmons, 543 U.S. 551, 594 (2005) (O’Connor, J., dissenting) (pointing out that only the Supreme Court may overrule its precedents

even where subsequent decisions or factual developments may appear to have ‘significantly undermined’ the rationale for [the] earlier holding

A plaintiff would have to bring such a case in a district court (or a state court), lose, and appeal, and hope the Supreme Court would agree to hear it and decide to overrule. With a very few exceptions, the Supreme Court is totally free to choose what cases it hears. It typically hears and decides less than 100 cases per year (in recent years), out of several thousand cases it is requested to hear.

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    @Neil, No. Vaccines available in 1905 had a 3-4% death rate from bacterial contamination, and used live virus. There was no regulation of contamination (until 1922) and no clinical trials comparable to today's EUA trials. Today's shots are much safer than those of 1905. Besides, a change in facts does not allow a lower court to overrule SCOTUS See State Oil Co. v. Khan, 522 U.S. 3, 22 (1997) and my answer to law.stackexchange.com/questions/49128/… Commented Aug 17, 2021 at 19:09
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    @Just The citation was copied from the 5th circuit opinion in National Coalition for Men v. Selective Service System No. 19-20272 (5th Cir. 2020-08-13), 2nd paragraph of p 5 of the opinion. The passage you cite is indeed the one intended. I did not verify the cite directly in the State Oil decision Commented Aug 17, 2021 at 22:41
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    @just cite corrected and expanded Commented Aug 17, 2021 at 22:53
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    @just No, I in effect conflated the two cites to State Oil in National Coalition. The ruling on price fixing was the ruling that the lower court properly did not try to change, and i improperly took the first cite to the case in the opinion. IDoes the answer look better now?. Commented Aug 17, 2021 at 22:57
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    The SCOTUS annual case load is now about 74 cases a year on average. ballotpedia.org/….
    – ohwilleke
    Commented Aug 19, 2021 at 2:04

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