14
MOODY v. NETCHOICE, LLC
THOMAS, J., concurring in judgment
authority to resolve private disputes between particular
parties, rather than matters affecting the general public.”
Ibid. (internal quotation marks omitted). They considered
judges “of all men the most unfit to have a veto on laws before their enactment.” Ibid. (internal quotation marks
omitted). Therefore, they refused to enlist judges in the
business of reviewing statutes other than “as an issue for
decision in a concrete case or controversy.”3 Ibid.
For more than a century following the founding, the
Court generally adhered to the original understanding of
the narrow scope of judicial review. When the Court first
discussed the concept of judicial review in Marbury v. Madison, it made clear that such review is limited to what is
necessary for resolving “a particular cas[e]” before a court.
1 Cranch, at 177; see also supra, at 5–6. And, in case after
case that followed Marbury, the Court reiterated that federal courts have no authority to reach beyond the parties
before them to facially invalidate a statute.4
——————
3 “The later history of the New York Council of Revision demonstrates
the wisdom of the Framers’ decision.” United States v. Hansen, 599 U. S.
762, 790 (2023) (THOMAS, J., concurring). The Council’s ability to lodge
objections proved significant: “Over the course of its existence, [the Council] returned 169 bills to the legislature; the legislature, in turn, overrode
only 51 of those vetoes and reenacted at least 26 bills with modifications.”
Ibid. The Council did not shy away from controversial or weighty matters either. It vetoed, among other things, “a bill barring those convicted
of adultery from remarrying” and a bill “declar[ing] Loyalists aliens.”
Ibid. In fact, the bill authorizing the Erie Canal’s construction—“one of
the most important measures in the Nation’s history—survived the
Council’s review only because Chancellor James Kent changed his deciding vote at the last minute, seemingly on a whim.” Ibid. Concerns over
the Council’s “intrusive involvement in the legislative process” eventually led to its abolition in 1820. Ibid.
4 See, e.g., Austin v. Aldermen, 7 Wall. 694, 699 (1869) (holding that
the Court could “only consider the statute in connection with the case
before” it and thus “our jurisdiction [wa]s at an end” once it “ascertained
that [the case] wrought no effect which the act forbids”); Liverpool, New
York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S.
33, 39 (1885) (the Court “has no jurisdiction to pronounce any statute . . .