Peter J. Wallison's Judicial Fortitude offers a brief and accessible introduction to the struggle to control the administrative state.
High courts in nineteen U.S. states provided advisory opinions in response to requests from coordinate branches of government at one time or another. Some states authorize the practice in their constitutions or by statute. In other states, particularly in the past, state high courts responded to advisory requests purely as a matter of judicial courtesy, without constitutional or statutory authorization. As I noted in my last post, either ten or eleven states continue the practice today (depending on how one counts North Carolina).
The U.S. Supreme Court notably declined to provide an advisory opinion in response to a request from then President George Washington. In its brief response, the Court provided two structural-functional bases for its answer, as well as a textual basis for its refusal.
The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, 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; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.
Article 2, section 2 of the Constitution, to which the Court alludes at the end of its response, provides that the president “may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective office.” I suspect the Court lead off with its structural-functional arguments because its textual argument, based on Article 2, Section 2, and with an implicit appeal to the “expressio unius” principle, seems weak. (That Washington could “require” cabinet officials to provide written opinions regarding their official duties would not seem to forbid presidential solicitation of other opinions from outside the cabinet if deemed necessary.)
The Court summarily alludes to two structural-functional arguments, one relating to interbranch checks and balances in separation-of-power political systems, the other to the Court’s Article 3 power, “being judges of a court in the last resort.”
The invocation of being “judges of a court in the last resort” hints at one common objections to judicial provision of advisory opinions, that doing so without an actual case in front of the Court would require justices to prejudge legal issues without concrete sets of facts in front of them. This might then bias the Court’s judgment in future litigation over the law. There’s a response to that claim, and critics have a rejoinder. But I’m getting ahead of myself.
First, the case for advisory opinions.
The case for judicial advisory opinions rests on advantages to early determination of the constitutionality of proposed policies. Advocates of the practice argue it allows society to avoid social costs associated with unconstitutional legislation. Ordinary litigation can take years to a state or national high court. In contrast, courts typically turnaround advisory requests in a matter of a few month.
As one commentator explained some years ago in a note in Harvard Law Review:
By providing an early determination of the constitutionality of legislation, an advisory opinion can avoid the harm which is frequently caused by unconstitutional statutes. . . . Before it is successfully challenged, an unconstitutional statute may discourage legitimate activity; or, conversely, it may encourage reliance which, when the statute is invalid, will provide to have been ill-founded, thus causing injury to those who have based action upon it.
Further, advisory opinions allow governments to avoid administrative costs “when the government sets up elaborate machinery to implement a statue later held unconstitutional.” The legislature can also avoid transaction and opportunity costs from wasting precious legislative time on legislation that would be struck down in the future.
The disadvantage to advisory opinions is the flip side of the advantage: precipitous decision making. Critics argue resolution of constitutional questions in advisory opinions lack key factual content regarding actual consequences of legislation. (Think of the elements of the standing doctrines.) The informational content of actual litigation over statutes as actually applied, argued by motivated litigants facing actual or imminent harm, cannot be replicated in advisory proceedings.
Felix Frankfurter put the argument this way in 1930:
Constitutionality is not a fixed quality in crucial cases it resolves itself into a judgment upon fats . . . Legislation is largely empirical based on probabilities . . . and not on demonstration. . . . [Further] the history of modern legislation amply proves that facts may often be established in support of measures after enactment, although not in existence previously.
. . . Experience has shown that whatever provision may be made on paper, advisory opinions are bound to move in an unreal atmosphere. In the attitude of court and counsel, in the availability of facts which underlie litigation, there is a wide gulf between opinions in advance of legislation or executive action, and decisions in litigation after such proposals are embodied into law or carried into execution.
Defenders of advisory opinions answer this objection by pointing out advisory opinions do not serve as precedent, the opinions do not bind courts in subsequent litigation. Even the form of the opinions implies as much. In all states (except Colorado), opinions come in the name of individual judges, not in the name of the entire court. So if new facts arise in the course of a law’s enactment and implementation that imply the need to “reverse” conclusions advanced in an advisory opinion, nothing prevents judges from holding the now-enacted law unconstitutional.
This response, however, does not persuade critics. While advisory opinions may not be formally binding, as a matter of human psychology, critics argue, conclusions advanced in advisory opinions will pull judges to confirm those advisory conclusions, however precipitously made.
[W]hile the technical doctrine of stare decisis is not applicable, the views expressed in advisory opinions not only receive careful consideration in subsequent litigation but in fact exercise a powerful influence psychologically upon adjudication.
Lord Coke argued much the same three centuries earlier: “For how can [judges] be indifferent [in a case], who have delivered their opinions beforehand without hearing of the party, when a small addition, or subtraction may alter the case.” Alexander Hamilton, in Federalist 78, though not precisely on point regarding advisory opinions themselves, mouthed much the same objection regarding judges serving on councils of revision: “Judges, who are to be interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities.”
The advantage of an advisory capacity for high courts would be reducing social and legislative costs of enacting unconstitutional legislation, legislation that could have been stopped at its proposal stage. The disadvantage is stickiness of false constitutional positives or false constitutional negatives at the advisory stage relative to outcomes in actual litigation.
Constitutional and institutional designers in different states have obviously come down on different sides in evaluating the advantages of the practice relative to its disadvantages. That said, argument need not remain theoretical. No study that I know of has (yet) examined the relationship of positions taken in advisory opinions to outcomes in subsequently litigated cases. (Mea culpa!)
I plan to wrap up musing about advisory opinions with a few odds and ends in my next post.