Thom Hartmann spanked a couple of DU'ers today on his show -

[joshcryer]

85. It gives them the explicit right to determine all cases.

It can use the constitution to determine those cases, but doesn't necessarily have to do so (precedent can be used, too).

The current case is brought to the court by states, it is a case that the court can decide, and it can use constitutionality as a determining factor for its decision along basic jurisprudence. Roe vs. Wade was decided under those circumstances.

Thom is arguing an anti-Federalist argument that basically SCOTUS are "kings or queens," as far as their powers are concerned. A quaint view, to be sure. The constitution is clear, if a case as far as constitutionality comes before the court, then it must decide it, as such a case falls under "all Cases" and therefore it is up to the court to decide that case. Jefferson himself must have realized this, and thought that a constitutional convention was the answer, as has been effectively applied with the various amendments to the constitution.

Basically the view was "let the people decide." That has yet to happen on things like, you know, abortion, segregation, and the like. We've shamefully, as a people, failed to apply it as Jefferson envisioned. For example, the Congressional Apportionment Amendment has sat in limbo for as long as one can imagine, so, they clearly gave too much credit to the American people in that regard.