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?
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.
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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.
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