Peter J. Wallison's Judicial Fortitude offers a brief and accessible introduction to the struggle to control the administrative state.
Felix Frankfurter and other Progressives opposed judicial advisory opinions, practiced by nineteen U.S. states at one time or another (and still employed today in ten states), because the practice deterred legislation. As an additional check on legislation, like bicameralism and ordinary judicial review (particularly when applied to non-privileged economic rights and non-suspect classifications), Progressives opposed the practice as a barrier to democratic decision making. As Frankfurter put it, “it must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay.”
Although Progressive opposed advisory opinions for being a status-quo preserving institution, conservatives have never generally cheered the institution as they have bicameralism, heightened judicial review of ordinary legislation, and the executive veto.
On the impact of advisory opinions on the volume of legislation, however, the Progressives are wrong that it is necessarily a status-quo preserving institution. As with the impact of bicameralism, judicial review, and the executive veto on the overall quantity of enacted legislation, the belief that advisory opinions only “slay” legislation and do not birth legislation is based on an erroneously static conception of what results when a veto player is inserted in the law-making process.
Here’s the common, albeit wrong-headed, way Frankfurter, and many others, think of the impact of adding a veto player or practice to the legislative process. The legislature enacts “N” laws in any given session. Whatever added veto players there are – judicial advisory opinion, ordinary judicial review, a second legislative chamber, an executive veto – all of these only eliminate, or “veto,” some number of bills or laws. Therefore the addition of veto players can never increase the number of laws and, to the extent that they “veto” on or more laws, the number of laws being implemented must be less than “N.” Veto players or practices necessarily are status-quo preserving institutions.
It’s a straight-forward, intuitive, and common conception. But it’s also wrong. The argument ignores that adding a reviewer down the line affects incentives up the line. The possibility of requesting an advisory opinion on pending legislation effectively shifts the legislative cost curve downward. It can elicit legislative proposals and enactments that would never have resulted in the absence of the practice.
Legislators, as the rest of us, are time constrained. At the margin, at least, legislators don’t want to waste their time shepherding a bill through the legislative process they think will be struck down by courts after its enactment. (Well, actually, sometimes they do, when returns to “position taking” on legislation known to be unconstitutional exceeds the cost of enacting the legislation. Think legislation against flag burning.)
Advisory opinions, however, open up the possibility of eliciting the views of the judges on legislation before enactment. This allows legislators to drop or amend pending legislation the judges deem to be unconstitutional. They waste less of their time with the practice than without it.
The overall impact of the advisory practice on legislative production is indeterminate. Further, legislators elicit advisory opinions only on legislation significant enough to make it worth the hassle of requesting the opinions in the first place. And one or two significant pieces of legislation may have more impact on people’s daily lives than numerous smaller pieces of legislation.
The important point isn’t that it’s good or bad that advisory opinions have an indeterminate impact on legislative volume. The point is that Frankfurter’s belief, and that of other Progressives, that advisory opinions only kill but do not birth is wrong headed; it is based on a flawed conception that the legislative process is static rather than dynamic.
This occurs at another level as well. When requesting advisory opinions, legislators (and executives) can take into consideration Frankfurter’s worry that, because judges consider legal issues at the advisory stage that might arise later in the course of litigation on the enacted law – litigation with a full evidentiary record that might identify constitutional flaws not uncovered at the advisory stage – judges may prove unwilling to admit they were wrong in that subsequent legislation, and uphold unconstitutional laws. Basically, Frankfurter argues the practice invites judges to give false positives on unconstitutional legislation, and they will be unwilling to change their minds having committed earlier.
But, again, legislators need not ask for advisory opinions willy-nilly. They can play the odds to minimize the risk of false positives, at least when those false constitutional positives affect policies and people in ways that concern the legislators.
This accounts for the relative popularity of judicial advisory opinions among legislators (and executives) when compared to judges. Beyond John Jay’s well-known response to George Washington’s request for an advisory opinion, high courts in eight U.S. states once responded to advisory requests as a matter of inter-institutional courtesy, but subsequently turned against the practice. (North Carolina is the one holdout, and it’s unclear that the state’s high court has not turned definitively against the practice.) All the states today in which employed the mechanism either have constitutional or statutory provisions authorizing the practice.
Whether for better or worse, though, state-level constitutionalists have not taken for granted the federal practice. Contrary to the popular notion that state constitutionalism is little more than federal constitutionalism in miniature form, state constitutional history and practice is replete with institutional arguments and practices resolved against the national constitutional example.