Advisory Opinions and the Influence of the Supreme Court over American Policymaking

Article excerpt

The influence and prestige of the federal judiciary derive primarily from its exercise of judicial review. This power to strike down acts of the so-called political branches or of state governments as repugnant to the Constitution--like the federal judicial power more generally--is circumscribed by a number of self-imposed justiciability doctrines, among the oldest and most foundational of which is the bar on advisory opinions.1 In accord with that doctrine, the federal courts refuse to advise other government actors or private individuals on abstract legal questions; instead, they provide their views only in the course of deciding live cases or controversies. (2) This means that the Supreme Court will not consider whether potential legislative or executive action violates the Constitution when such action is proposed or even when it is carried out, but only when it is challenged by an adversary party in a case meeting various doctrinal requirements. So, if a legislative coalition wishes to enact a law that might plausibly be struck down--such as the 2010 healthcare legislation (3)--it must form its own estimation of whether the proposal is constitutional (4) but cannot know for certain how the Court will ultimately view the law.

The bar on advisory opinions is typically justified by reference to the separation of powers and judicial restraint: when courts answer legal questions outside the legal dispute-resolution process, they reach beyond the judicial role and assume a quasi-legislative character. But whatever its rationale, the effect of the bar--and in particular the federal courts' refusal to provide an ex ante evaluation of a proposed law's constitutionality at the request of the elected branches--is to expand the influence of the judiciary over American policymaking. (5 )First, because the legislature cannot know ahead of time whether plausibly unconstitutional statutes will be struck down or left standing, it must discount the expected value of such proposals by the probability of their not being invalidated in deciding how to expend its limited political capital. (6) All else equal, this makes legislation that the Court might strike down less attractive to Congress, and so less likely to be enacted, than constitutionally unproblematic legislation. Second, the Court is itself subject to political constraints, especially when issuing countermajoritarian invalidations of the acts of the elected branches. The bar on advisory opinions, by keeping Congress guessing and forcing it to forego some constitutionally problematic legislation while allowing the Court to withhold judgment until enactment and implementation costs have been sunk, allows the Court to reserve its limited political capital for those proposals that surmount legislative doubts about constitutionality and pass through bicameralism, presentment, and other veto-gates to become law. Thus, by refusing to issue advisory opinions, the Court both causes Congress and helps itself to conform American law to the Court's vision of the Constitution. A doctrine adopted in the name of judicial restraint thereby tilts the balance of power between the Supreme Court and the elected branches in favor of greater influence for the Court.

This Note proceeds in five Parts. Part I briefly examines the history behind the bar on advisory opinions and the doctrinal justifications that have been put forth in support of it. Part II provides a concrete alternative to the status quo by describing a hypothetical practice of Supreme Court advisory opinions. Part III lays out a model of legislative behavior, building on a recent article by Professor Matthew Stephenson. (7) Part IV provides a model of judicial behavior. Part V combines the models to explain why the bar on advisory opinions increases the Court's influence over American legislation.

The federal courts' refusal to issue advisory opinions is and will in all likelihood remain a fixed point in American practice, and it is no part of this Note's purpose to advocate its abandonment or to make normative arguments for or against it. …


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