Advisory Opinion Doctrine and Practice

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

At the time of the Founding, both English law1 and existing state constitutions2 allowed courts to issue advisory opinions. Nonetheless, the Framers declined to include explicit language in the Constitution that would have imposed an advisory role for the Supreme Court or other federal courts.3 The final version of Article III states only that the “judicial power shall extend to” certain categories of “Cases” and “Controversies.” 4 Although that language does not conclusively resolve the question of whether courts have the power to issue advisory opinions,5 the Supreme Court resolved the issue early in the nation’s history in two key cases.

The Supreme Court first issued a decision related to advisory opinions (albeit without using the term) in 1792, in Hayburn’s Case.6 In that case, the Supreme Court considered a petition for a writ of mandamus to direct a federal circuit court to proceed on a claim seeking a federal pension. The petitioner argued that the courts had failed to give effect to an act of Congress. The Court noted, however, that “the reasons assigned by the judges,” including Supreme Court Justices sitting on the circuit courts, “for declining to execute the . . . act of Congress, involve a great constitutional question.” 7 Specifically, those judges contended that pension decisions under the Act were not judicial duties that Congress could constitutionally assign to the courts because the Act subjected such decisions to “revision and control” by the legislature and an officer in the Executive department.8 They determined that such control was “radically inconsistent with the independence of that judicial power which is vested in the courts” by the Constitution.9 While Hayburn’s Case remained pending, Congress enacted legislation providing an alternative means of relief for the pensioners; the Court then dismissed the mandamus petition without deciding the underlying constitutional question.10 However, the circuit court opinions declining to issue non-final pension decisions have become an accepted part of the Court’s justiciability jurisprudence. The Court has since confirmed that it has no jurisdiction where an opinion would be subject to later review and revision, as such a ruling can amount to no more than advice.11

The Supreme Court produced the second early precedent against advisory opinions in 1793. In that year, President George Washington, seeking to determine the United States’ legal rights and obligations in relation to ongoing conflicts between the European powers of France and Britain, sent a letter through his Secretary of State, Thomas Jefferson, to the Justices of the Supreme Court.12 The letter asked if the Justices would be willing to render opinions on a number of legal questions of “considerable difficulty” that “do not give a cognizance of them to the tribunals of the country.” 13 The Justices declined to provide an answer. Chief Justice John Jay drafted a response to the President explaining that “[t]he lines of separation drawn by the Constitution between the three departments of government . . . and our being judges of a court in the last resort . . . are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to.” 14 Although the letter was not an official opinion of the Court, the Court has since cited it as a major source of the rule against advisory opinions.15

Subsequent precedents and practice have reaffirmed the prohibition on advisory opinions but raised some questions about its scope. In the 1948 case Chicago & Southern Air Lines v. Waterman S. S. Corp., the Court refused a private party’s request for review of an order of the Civil Aeronautics Board that was, in effect, merely a recommendation to the President for his final action.16 The Court explained that a judicial decision on the matter would be “an advisory opinion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control.” 17 While the Court’s refusal to act was based in part on the risk of intruding on the President’s authority, the Court also made clear that was not the sole relevant factor, as the Judiciary had “early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive.” 18

The majority opinion in Chicago & Southern Air Lines stated that it has been “the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.” 19 However, while the Court has declined to issue advisory opinions via formal judicial decisions, Supreme Court Justices have at times offered their thoughts on the law in an informal capacity. For instance, in response to a letter calling for suggestions to improve in the operation of the courts, Supreme Court Justices drafted a letter suggesting that the requirement that Justices ride circuit was unconstitutional, though apparently they never sent it.20 Justice William Johnson communicated to President James Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation.21 In addition, Chief Justice Charles Evans Hughes sent a letter to Senator Burton K. Wheeler questioning the constitutionality of a proposal from President Franklin Delano Roosevelt’s administration to increase the membership of the Supreme Court and have the Court sit in divisions.22 Other Justices have individually served as advisers and confidants of Presidents to one degree or another.23

Some commentators also contend that the precise meaning of the ban on advisory opinions became blurred in the twentieth century, as the Court has used the phrase to refer to a number of different distinct limitations on federal courts.24 Primarily, the Court has used the term in reference to the Article III justiciability limitations on federal courts’ jurisdiction, such as mootness or standing.25 However, the Court has also linked the ban on advisory opinions to modern prudential doctrines, such as the Supreme Court’s practice of not deciding questions in state court cases that have been resolved on a separate and independent state law ground,26 and the practices of courts to avoid reaching constitutional issues or questions not necessary to the determination of the case.27 These varying uses of the term “advisory opinion,” combined with the fact that the Court has referenced it less frequently than any other justiciability rule,28 have created confusion among scholars or practitioners about the precise meaning of the prohibition.

Beyond its constitutional role, the Court’s rule against advisory opinions has repeatedly been recognized or applied in other, non-constitutional contexts. For instance, as noted, the Court has invoked the ban on advisory opinions to justify its practice of not deciding questions in state court cases that have been decided on a separate and independent state law ground.29 The Court has also suggested that the advisory opinion ban might be relevant to other legal questions, such as whether the Court should issue purely prospective decisions,30 whether a federal court should render alternative holdings or issue dicta,31 and whether individual Justices should “engage[ ] in extrajudicial expression of their legal views.” 32 As these references show, although the ban on advisory opinions is only rarely invoked by the Supreme Court, its implications are felt throughout the Court’s jurisprudence and throughout the law.33

1: Flast v. Cohen, 392 U.S. 83, 96 (1968) ( “[T]he power of English judges to delivery advisory opinions was well established [at the Founding].” ) (citing 3 K. Davis, Administrative Law Treatise 127–128 (1958)). See also 1 William Blackstone, Commentaries 162 (1765) (noting that Members of the House of Lords “have a right to be attended, and constantly are, by the judges of the court of king’s bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings.” ). But see Sackville’s Case (1760), 28 Eng. Rep. 940, 2 Eden, 371 (issuing a formal, written extrajudicial opinion to the King as to whether an army officer could be tried by court martial, but noting that, according to Lord Mansfield, the judges are “very averse to giving extra-judicial opinions, especially where they affect a particular case” ).
2: Mass. Const. ch. III, art. II. ( “Each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.” ). See also N.H. Const. art. 74 ( “Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.” ).
3: See James Madison, James Madison’s Notes of the Constitutional Convention, Max Farrand, 1 The Records of the Federal Convention of 1787 17–23 (1911) (providing for “a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate” ); Virginia (Randolph) Plan as Amended (providing that “the jurisdiction of the national Judiciary shall extend to . . . questions which involve the national peace and harmony.” ); James Madison, James Madison’s Notes of the Constitutional Convention, Max Farrand, 2 The Records of the Federal Convention of 1787, at 334 ( “Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.” ). See also James Madison, James Madison’s Notes of the Constitutional Convention, Max Farrand, 1 The Records of the Federal Convention of 1787 96–105 (1911) ( “It was quite foreign from the nature of [the judicial] office to make them judges of the policy of public measures.” ) (quoting Elbridge Gerry, a delegate from Massachusetts).
4: U.S. Const. art. III, § 2.
5: Compare with U.S. Const. art. II, § 2 ( “The President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments.” ) (emphasis added).
6: 2 U.S. (2 Dall.) 409 (1792).
7: Id. at 410, footnote.
8: Id..
9: Id. See also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995) (holding that congressional statute that “retroactively command[ed] the federal courts” to reopen final judgments was unconstitutional). But see Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (plurality) ( “The separation of powers, among other things, prevents Congress from exercising the judicial power . . . At the same time, the legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins.” ); Bank Markazi v. Peterson, 136 S. Ct. 1310, 1325 (2016) ( “Congress may indeed direct courts to apply new enacted, outcome-altering legislation in pending civil cases.” ).
10: Id.
11: See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring) (citing Hayburn’s Case for the proposition that “the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions” ). See also Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp. 333 U.S. 103, 113–14 (1948) ( “To revise or review an administrative decision which has only the force of a recommendation . . . would be to render an advisory opinion in its most obnoxious form.” ); United States v. Ferreira, 54 U.S. (13 How.) 40, 48 (1852) (noting that the powers of a commissioner to “adjust claims to lands or money” is not “judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States” ).
12: Letter from Thomas Jefferson, Sec. of State, to Chief Justice Jay and Associate Justices (July 18, 1793), reprinted in Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 50–51 (7th ed. 2015).
13: Id.
14: Letter from Chief Justice Jay and Associate Justices to President George Washington (August 8, 1793) reprinted in Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 52 (7th ed. 2015).
15: Vieth v. Jubelirer, 541 U.S. 267, 302 (2004) (plurality) (noting that 1793 correspondence involved “categorical” statement by the Court that the “giving of advisory opinions” was beyond the judiciary’s power); Flast v. Cohen, 392 U.S. 83, 96 n.14 (1968) (noting that “[t]he rule against advisory opinions was established as early as 1793 . . . and the rule has been adhered to without deviation.” ). See also Muskrat v. United States, 219 U.S. 346, 354 (1911) (citing the 1793 correspondence in refusing to take jurisdiction over a case brought under a statute creating a lawsuit devised to test the constitutionality of a different statute).
16: 333 U.S. 103 (1948).
17: Id. at 113.
18: Id.
19: Id.
20: 2 The Documentary History of the Supreme Court of the United States, 1789–1800: The Justices on Circuit: 1790–1794, at 89–91 (Maeva Marcus ed., 1985).
21: 1 C. Warren, The Supreme Court in United States History 595–597 (1926).
22: Reorganization of the Judiciary: Hearings on S. 1392 Before the S. Judiciary Comm., 75th Cong., pt. 3, 491 (1937). See also Chief Justice Roger B. Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied on the salaries of federal judges violated the Constitution. S. Tyler, Memoirs of Roger B. Taney 432–435 (1876).
23: E.g., Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 919 (1969); Jaffe, Professors and Judges as Advisors to Government: Reflections on the Roosevelt-Frankfurter Relationship, 83 Harv. L. Rev. 366 (1969). The issue earned the attention of the Supreme Court when it upheld the congressionally authorized service of federal judges on the Sentencing Commission. Mistretta v. United States, 488 U.S. 361, 397–408 (1989) (citing examples and detailed secondary sources).
24: See Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 648 (1992); see also Wright, Miller, & Cooper, 13 Fed. Prac. & Proc. Juris. § 3529.1 (3d ed.) (discussing different uses of the term).
25: See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (noting that “[t]he exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy” and that this is tied to the lack of power to issue advisory opinions); North Carolina v. Rice, 404 U.S. 244, 246 (1971) (dismissing case on grounds of mootness, noting that “this Court [has] no power to issue advisory opinions” ); Hall v. Beals, 396 U.S. 45, 48 (1969) (in holding that recent amendment by Colorado Legislature rendered case moot, observing that “The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law” ); Pub. Workers v. Mitchell, 330 U.S. 75, 89 (1947) (in finding that plaintiffs’ claims not a justiciable “case or controversy” under Article III, noting that “[a]s is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions” ); St. Pierre v. United States, 319 U.S. 41, 42 (1943) ( “A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.” ).
26: See Herb v. Pitcairn, 324 U.S. 117, 126 (1945) ( “We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” ). See also Lambrix v. Singletary, 520 U.S. 518, 522–23 (1997) ( “We in fact lack jurisdiction to review such independently supported judgments on direct appeal: since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory.” ).
27: See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring) (noting that the federal courts “have no power to give advisory opinions” and discussing rules by which the Court has “avoiding passing upon a large part of all the constitutional questions pressed upon it for decision” ). See also Lee, supra note 24, at 648–49 (discussing application of “advisory opinion” label to dicta).
28: Erwin Chemerinsky, Federal Jurisdiction § 2.2 (6th ed. 2012) (noting that “the Supreme Court expressly refers to the ban on advisory opinions less frequently than the other justiciability doctrines” ).
29: See Herb, 324 U.S. at 126 ( “We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” ). See also Lambrix, 520 U.S. at 522–23 ( “We in fact lack jurisdiction to review such independently supported judgments on direct appeal: since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory.” ). But see 16B Charles A. Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 4021 (3d ed. 2018) (explanation that adequate-state-ground rule rests on prohibition against rendering advisory opinions is “circular” ; in addition, “advisory opinion doctrine is [ ] inadequate to describe the full range of practice with respect to state law questions.” ).
30: Stovall v. Denno, 388 U.S. 293, 301 (1967) (refusing to make a criminal procedure rule generally retroactive, holding it applied only to future cases plus the case announcing the rule, despite the resulting inequality to other pending cases, noting that the rule could not be purely prospective because of “[s]ound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies” ). See also Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 54 (7th ed. 2015) (evaluating arguments about whether purely prospective decision would constitute an advisory opinion forbidden by Article III).
31: See, e.g., Fallon, supra note 30, at 55 (asking whether “[w]hen a Court renders alternative holdings, has it violated constitutional norms?” ).
32: Id. at 56 (citing examples of extrajudicial expressions of Justices’ views).
33: In a few other areas, courts issue opinions that might be considered “advisory,” insofar as they do not directly affect the parties before the court. See Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. Rev. 847 (2005) (considering the Court’s examination of “unnecessary” constitutional issues in four contexts, qualified immunity, habeas corpus, harmless error, and Fourth Amendment good faith, and considering whether and when this practice can be consistent with the ban on advisory opinions). However, the Supreme Court has not addressed whether this practice can be reconciled with the ban on advisory opinions.