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Some States Embrace an Advisory Role for Their High Courts

While the U.S. Constitution does not expressly forbid the U.S. Supreme Court from providing advisory opinions to Congress or the President, the Court famously declined the role early on when, as president, George Washington asked the justices to advise him on the country’s treaty obligations. Contrary to national practice, however, upwards of nineteen state high courts provided advisory opinions during some period in the past, and a little over half that number still do so today. While a minority practice among the states, it’s a sizeable minority. The practice, and attitudes of the different institutions toward the practice, highlight novels facets of institutional interaction in separation-of-power political systems. In this post I chat about the various, heterogeneous state practices. In my next post I discuss the institutional and constitutional design question.

Today courts in eleven states can provide advisory opinions. Or ten, depending whether one counts North Carolina. While the option appears to continue as an abstract possibility in North Carolina, and the state’s high court provided such opinions around 20 times between 1849 and 1949, the court proved hostile to the practice in several cases dating from the mid-1980s and early 1990s. Nonetheless, while noting when declining those requests that it looked on with “disfavor” on the practice, the North Carolina high court seems to have left a narrow door open for the practice when the requesting party can show “normal legal procedures” would not suffice to answer the question.

Eight other state supreme courts provided advisory opinions during the 19th century; all ended the practice in that century as well. In almost of these states in which the practice died off in the 19th century, the states’ high courts provided the opinions without constitutional or statutory authorization.

North Carolina excepted, all of the states today that continue the practice provide constitutional or statutory authorization for the practice. Setting aside North Carolina, judicial advisory opinions continue as a more or less active possibility in ten states today. The constitutions of eight of these states authorize advisory opinions (Colorado, Florida, Maine, Massachusetts, Michigan, New Hampshire, Rhode Island, and South Dakota); statutes authorize the practice in the two other states (Alabama and Delaware). Nonetheless, in a 2002 study, Alabama leads the states in number of advisory opinions, averaging around five per year, followed by New Hampshire at around three per year, then Massachusetts, Florida and Rhode Island at about two per year.

And par for the course for state constitutionalism in general, states offer a variety of practices for advisory opinions as well.

Governors may request advisory opinions from high courts in all of the states permitting the practice today. Legislatures can request them in all states except Florida and South Dakota. Executive councils can request opinions in Massachusetts and New Hampshire, and the Attorney General can request advisory opinions in Florida. When permitting the practice in the 19th Century, the Nebraska Supreme Court even answered requests from legislative committees.

In all cases except Michigan, advisory opinions concern unenacted policy proposals. Michigan limits advisory opinions to the period between a statute’s enactment and its effective date.

In U.S. states, legislative chambers request advisory opinions by majority-supported resolutions. This contrasts with “abstract review” in European countries, where legislative minorities can request expedited review of legislation.

One seemingly technical point nonetheless becomes substantively significant in the argument over the wisdom of allowing advisory opinions: In all states save one (Colorado), judges provide opinions only in their individual capacity as judges and not in the name of the court itself. This means the opinion binds neither the court nor the person or institution requesting the opinion; advisory opinions do not provide precedent that can be used future litigation. Critics of the practice, however, contest the ability of judges to separate themselves in subsequent legislation from positions they may have taken in advisory opinions. I plan to talk a bit more about this in my next post.

The advisory process moves at much quicker pace between request and opinion than does ordinary litigation. A 1949 article in the Indiana Law Journal by Oliver Field reported courts took about one month to respond to requests for advisory opinions, contrasted with seven years for courts to decide the constitutionality of legislation in ordinary litigation. In our AJPS article on the topic, Duke political scientist Georg Vanberg and I took a sample of forty-three more recent advisory opinions (with no pretentions to randomness) and found an average turnaround time of ten weeks and a median turnaround period of eight weeks.

Funny thing, though legislatures and executives seem more enthusiastic than state high courts toward the practice. This is an irony if we think of institutions in separation-of-power political systems checking and balancing one another. In the case of advisory opinions, the political institutions seem to invite the additional check and balance, while the courts, institution doing the checking and balancing, often seem reluctant to provide it. (More on this later.)

The phenomenon raises a puzzle regarding separation-of-power political systems when we conceive institutional interaction purely as checks and balances, “ambition counteracting ambition,” per Madison in Federalist 51. While not inaccurate, framing checks and balances as the sum of institutional interaction in separation-of-power systems invites us fundamentally to conceive that interaction as a constant-sum game between the institutions. We think the exercise of one institution’s power necessarily comes at the expense of the power of the other institution(s). For better or worse, however, the separated institutions in separation-of-power systems often use each other to advance their separate institutional interests. More about this in my next post, along with the related issue of the wisdom of advisory opinions more generally.

Reader Discussion

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on May 29, 2018 at 16:26:25 pm

Interesting article. Will the next post elaborate on the nature or extent of requests for advisory opinion? Perhaps that is what the author meant by "design question".

Requests for advisory would truly be an irony if through them the legislator delegates to the judiciary the functions of jus dare. Indeed, that would allow judicial activists (judge felon Kuhnke and judge Timothy Connors are two such examples in Michigan) to act as unfettered lobbyists. If the legislator were to abdicate his function, the consequences are obvious: more and more judges spreading nefarious laws and serving whatever illegitimate interests maintain these black-robed semi-gods on the bench.

But when requests do not amount to delegating legislative functions, I think that the effects of advisory opinions are beneficial. It is entirely valid for Congress to ask the judicial branch "What is the judiciary's understanding of this initiative which we plan to enact?", or "Does the judiciary foresee any disruptions, gaps, or issues if this legislation is introduced?". Consultations of that sort will enhance productivity and mutual understanding between the branches of government. Imagine if, prior to enactment, Justice Gorsuch had been given the opportunity to assess the vague legislation which he vehemently criticized in his concurring opinion in Sessions v. Dimaya [1].

Let me emphasize the premise of "prior to enactment" in my previous paragraph because it is odd that "Michigan limits advisory opinions to the period between a statute's enactment and its effective date". Once the statute is enacted, Michigan's high court's involvement occurs too late. What is the benefit or purpose of the judiciary's "advising" on a finished product? With enactment having occurred, judicial economy dictates that Michigan Justices should be put to better use; for instance, by diligently reading our Applications for Leave to Appeal instead of assigning them to their team of assistant attorneys [2].

[1] https://www.leagle.com/decision/insco20180417f29
[2] Weaver Elizabeth. Judicial Deceit :: Tyranny & Unnecessary Secrecy at The Michigan Supreme Court. Published 2013.

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Iñaki Viggers
on May 29, 2018 at 17:22:01 pm

I think the Supreme Court (or some of them at least) when declining to advise Washington, explained that they were worried about being subservient to the Executive if they would accept the responsibility of offering advisory opinions whenever the executive asked. Not they were worried about arrogating too much power to themselves. That's probably because they didn't think advisory opinions had any legal force.

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brad
on May 29, 2018 at 17:58:22 pm

This is a relevant excerpt from my recent article, part of a series, posted on the American System Now blog:
https://americansystemnow.com/steamboat-case-clears-way-for-american-system/

... the Supreme Court can only decide “cases or controversies” that are put before it. It does not offer its advice or opinion on matters not before the Court. At least it usually doesn’t. There was one notable exception to this rule, in 1822, when President Monroe sought the Court’s views on Congress’s authority to fund internal improvements, and Justice William Johnson responded to Monroe affirming Congress’s authority to do so....

Although he emerged as a strong nationalist over his years on the Court, Johnson did not always agree with Marshall, and was more inclined to strictly define federal jurisdiction. But on the core planks of the American System–the national bank, protective tariffs, and internal improvements–he was in complete agreement, as shown by his correspondence with his friend Mathew Carey, who “stood in the vanguard of nationalist economists,” as one scholarly authority on Johnson accurately put it.

In May 1822, President Monroe vetoed the Cumberland Road bill, believing that Congress lacked the constitutional authority to appropriate funds for internal improvements; he thought a constitutional amendment would be needed to give Congress this power. In addition to sending his lengthy veto message to Congress, Monroe also sent it to each of the Justices on the Supreme Court for their views. While Marshall and Story declined to comment directly, Johnson did reply, saying that he had polled his fellow Justices, and that they had instructed him to convey their views. He stated that the Justices

"… are all of the opinion that the decision on the bank question [McCulloch] completely commits them on the subject of internal improvements as applied to post-roads and military roads. On the other points it is impossible to resist the lucid and conclusive reasoning contained in the argument.

"The principle assumed in the case of the Bank is that the grant of the principal power carried with it the grant of all adequate and appropriate means of executing it. That the selection of those means must rest with the general government, and as to that power and those means the Constitution makes the Government of the U.S. supreme."

Johnson’s letter apparently had some effect, as shown in Monroe shifting course and signing a bill for internal improvements as he was leaving office in March 1825. But that not only reflected the Supreme Court’s view as conveyed by Johnson, but it also showed the impact of the Court’s 1824 ruling in the Steamboat case. To that, we now turn our attention....

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Edward Spannaus
on May 29, 2018 at 18:53:22 pm

Inaki:

Re: advisory & jus dare:

While it may enhance efficiency in government (although not necessarily LawGiving) given the present undue deference accorded judicial determinations by the Legislative AND the propensity of the Judicial to engage in all manner of under the table jus dare, would this sanctioned expansion of Judicial authority not result in even more (and EARLIER) judicial activism / lawmaking?
In other words, why dangle opiates in front of an addict?

Then again, when we appear to have a problem with both the amount and the nature of present lawmaking, is a more efficient mechanism appropriate. (I am only being half-facetious here).

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gabe
on May 31, 2018 at 08:57:30 am

Your point (and the analogy you make) accurately describes the risk of judicial abuse. That is why any such requests need to be handled very carefully.

Inquiries should be aimed at very limited purposes, such as probing the judiciary's reading comprehension of statutory language (and to make the latter more precise if necessary). Even if it is not binding precedent, that would help curtailing judges' room for their arbitrary "interpretation" and outright obliteration of the legislature.

As an example, MCL 423.452 (in Michigan) is a very specific statute which supersedes and replaces the common-law qualified privilege in certain contexts (authorities cited on pp. 23-26 of my petition for Writ of Certiorari[1], [2]), such as one of my cases. My day in [Michigan] court was wasted because state judges simply babbled the blurry terms of common-law privilege instead of following the enacted law. When drafting MCL 423.452, legislators could have submitted a draft and questionnaire to the judiciary including the item: "Do you understand that the legislative intent is to replace the common-law counterpart?".

[1] https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1576.html
[2] http://www.supremecourt.gov/DocketPDF/17/17-1576/47761/20180522155830083_00000001.pdf

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Iñaki Viggers

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.