Thomas, J., concurring
963 (2018).[1]
Despite the support of respected delegates like Wilson and Madison, the Convention voted against creating a federal council of revision on four different occasions. P. Hamburger, Law and Judicial Duty 511 (2008). No other proposal was considered and rejected so many times. Ibid. Like the council’s supporters, opponents of the proposal understood that the judicial power is only the authority to “resolve private disputes between particular parties,” rather than “matters affecting the general public.” Barry 255. Working from that shared premise, they reasoned that it was “ ‘quite foreign from the nature of [the judicial] office to make them judges of the policy of public measures,’ ” as “ ‘no maxim was better established’ than that ‘the power of making ought to be kept distinct from that of expounding, the law.’ ” Ibid. (quoting 1 Farrand 97–98 (E. Gerry); 2 id., at 75 (C. Strong)); see also 1 id., at 140 (J. Dickinson). Indeed, opponents observed that “the Judges” were “of all men the most unfit to” have a veto on laws before their enactment. 2 id., at 80 (J. Rutledge). This was so not only because judges could not be “presumed to possess any peculiar knowledge of the mere policy of public measures,” id., at 73 (N. Ghorum), but also because, to preserve judicial integrity, they “ought never to give their opinion on a law till it comes before them” as an issue for decision in a concrete case or controversy, id., at 80 (J. Rutledge); see also Perez v. Mortgage Bankers Assn., 575 U. S. 92, 121 (2015) (Thomas, J., concurring in judgment) (“[J]udicial involve-
- ↑ Later statements of the proposed council’s supporters confirm their understanding that the judicial station is incompatible with making policy judgments. See Moodie v. Ship Phoebe Anne, 3 Dall. 319 (1796) (Elsworth, C. J.) (“Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right”); 8 Writings of James Madison 387 (G. Hunt ed. 1908) (“[Q]uestions of policy and expediency, are unsusceptible of judicial cognizance and decision”).
