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What Are Advisory Opinions?

An advisory opinion differs from a normal court decision, it does not adjudicate the facts of a specific case. Instead, an advisory opinion provides an interpretation of a law. The Supreme Court has determined that the case and controversy requirement of Article III prohibits federal courts from issuing advisory opinions.

Can the Supreme Court Provide General Advice?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution.1 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: "These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially 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, seem to have been purposely as well as expressly united to the Executive departments."2 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct when he termed the policy a "firm and unvarying practice."3 The Justices, in response to a letter calling for suggestions to improve in the operation of the courts, drafted a letter suggesting that circuit duty for the Justices was unconstitutional, but they apparently never sent it;4 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation;5 and Chief Justice Hughes in a letter to Senator Wheeler on President Roosevelt's Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions.6 Other Justices have individually served as advisers and confidants of Presidents in one degree or another.7

Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as a logical application of the case and controversy doctrine. As Justice Jackson wrote when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action: "To revise or review an administrative decision which has only the force of a recommendation to the President would be to render 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. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also 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."8 The Court's early refusal to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,9 or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,10 or where the issues involved were abstract or contingent.11

Declaratory Judgments

Rigid emphasis upon such elements of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure.12 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s,13 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934.14 Quickly tested, the Act was unanimously sustained.15 "The principle involved in this form of procedure," the House report said, "is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts."16 The Senate report stated: "The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice."17

The 1934 Act provided that "[i]n cases of actual controversy" federal courts could "declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed."18 Upholding the Act, the Court wrote: "The Declaratory Judgment Act of 1934, in its limitation to 'cases of actual controversy,' manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word 'actual' is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish."19 Finding that the case presented a definite and concrete controversy, the Court held that a declaration should have been issued.20

The Court has insisted that "the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit."21 As Justice Douglas wrote: "The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."22 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction.23 Use of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending into all areas of civil litigation, except taxes,24 is common. The Court has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure.25 In part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like.26 Nonetheless, even at such times, several noteworthy constitutional decisions were rendered in declaratory judgment actions.27

As part of the 1960s hospitality to greater access to courts, the Court exhibited a greater receptivity to declaratory judgments in constitutional litigation, especially cases involving civil liberties issues.28 The doctrinal underpinnings of this hospitality were sketched out by Justice Brennan in his opinion for the Court in Zwickler v. Koota,29 in which the relevance to declaratory judgments of the Dombrowski v. Pfister30 line of cases involving federal injunctive relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of "federal question" jurisdiction in the federal courts by Congress following the Civil War, as well as the enactment of more specific civil rights jurisdictional statutes, "imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims."31 Escape from that duty might be found only in "narrow circumstances," such as an appropriate application of the abstention doctrine, which was not proper where a statute affecting civil liberties was so broad as to reach protected activities as well as unprotected activities. Second, the judicially developed doctrine that a litigant must show "special circumstances" to justify the issuance of a federal injunction against the enforcement of state criminal laws is not applicable to requests for federal declaratory relief: "a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction."32 This language was qualified subsequently, so that declaratory and injunctive relief were equated in cases in which a criminal prosecution is pending in state court at the time the federal action is filed33 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court,34 and federal courts were instructed not to issue declaratory judgments in the absence of the factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have to meet the stricter requirements justifying the issuance of an injunction.35

Retroactivity Versus Prospectivity

One of the distinguishing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases.36 The Court asserted that this principle is true, while applying it only to give retroactive effect to the parties to the immediate case.37 Yet, occasionally, the Court did not apply its holding to the parties before it,38 and in a series of cases beginning in the mid-1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not exclusively39—constitutional-criminal law decisions. The results have been confusing and unpredictable.40


  1. 1 C. Warren, supra at 108–111. The full text of the exchange appears in 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed., 1893).
  2. Jay Papers at 488.
  3. Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948).
  4. See supra.
  5. 1 C. Warren, supra at 595–597.
  6. Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491. See also Chief Justice 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).
  7. 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, Mistretta v. United States, 488 U.S. 361, 397–408 (1989) (citing examples and detailed secondary sources), when it upheld the congressionally authorized service of federal judges on the Sentencing Commission.
  8. Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113–114 (1948).
  9. Muskrat v. United States, 219 U.S. 346 (1911).
  10. United States v. Ferreira, 54 U.S. (13 How.) 40 (1852).
  11. United Public Workers v. Mitchell, 330 U.S. 75 (1947).
  12. Cf. Willing v. Chicago Auditorium Ass'n, 277 U.S. 274 (1928).
  13. Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927)Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933)Wallace was cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) ("Article III's limitation of federal courts' jurisdiction to 'Cases' and 'Controversies,' reflected in the 'actual controversy' requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed," id. at 120–21).
  14. 48 Stat. 955, as amended, 28 U.S.C. §§ 2201–2202.
  15. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) (cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007)).
  16. H. Rep. No. 1264, 73d Congress, 2d Sess. (1934), 2.
  17. S. Rep. No. 1005, 73d Congress, 2d Sess. (1934), 2.
  18. 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201.
  19. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–240 (1937).
  20. 300 U.S. at 242–44.
  21. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).
  22. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).
  23. Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942)Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 243 (1952)Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962)See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
  24. An exception with respect to Federal taxes was added in 1935. 49 Stat. 1027. The Tax Injunction Act of 1937, 50 Stat. 738, U.S.C. § 1341, prohibited federal injunctive relief directed at state taxes but said nothing about declaratory relief. It was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393 (1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100 (1981).
  25. E.g.Ashwander v. TVA, 297 U.S. 288 (1936)Electric Bond Co. v. SEC, 303 U.S. 419 (1938)United Public Workers v. Mitchell, 330 U.S. 75 (1947)Eccles v. Peoples Bank, 333 U.S. 426 (1948)Rescue Army v. Municipal Court, 331 U.S. 549, 572–573 (1947).
  26. United Public Workers v. Mitchell, 330 U.S. 75 (1947)Poe v. Ullman, 367 U.S. 497 (1961)Altvater v. Freeman, 319 U.S. 359 (1943)International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954)Public Service Comm'n v. Wycoff Co., 344 U.S. 237 (1952).
  27. E.g.Currin v. Wallace, 306 U.S. 1 (1939)Perkins v. Elg, 307 U.S. 325 (1939)Ashwander v. TVA, 297 U.S. 288 (1936)Evers v. Dwyer, 358 U.S. 202 (1958).
  28. E.g.Baggett v. Bullitt, 377 U.S. 360 (1964)Keyishian v. Board of Regents, 385 U.S. 589 (1967)Turner v. City of Memphis, 369 U.S. 350 (1962)Powell v. McCormack, 395 U.S. 486 (1969)But see Golden v. Zwickler, 394 U.S. 103 (1969).
  29. 389 U.S. 241 (1967).
  30. 380 U.S. 479 (1965).
  31. Zwickler v. Koota, 389 U.S. 241, 248 (1967).
  32. Zwickler v. Koota, 389 U.S. 241, 254 (1967).
  33. Samuels v. Mackell, 401 U.S. 66 (1971). The case and its companion, Younger v. Harris, 401 U.S. 37 (1971), substantially undercut much of the Dombrowski language and much of Zwickler was downgraded.
  34. Hicks v. Miranda, 422 U.S. 332, 349 (1975).
  35. Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered by Steffel, the federal court may issue preliminary or permanent injunctions to protect its judgments, without satisfying the Younger tests. Doran v. Salem Inn, 422 U.S. 922, 930–931 (1975)Wooley v. Maynard, 430 U.S. 705, 712 (1977).
  36. For a masterful discussion of the issue in both criminal and civil contexts, see Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991).
  37. Stovall v. Denno, 388 U.S. 293, 301 (1967).
  38. England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 422 (1964)James v. United States, 366 U.S. 213 (1961)See also Morrissey v. Brewer, 408 U.S. 471, 490 (1972).
  39. Noncriminal constitutional cases included Lemon v. Kurtzman, 411 U.S. 192 (1973)City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970)Cipriano v. City of Houma, 395 U.S. 701 (1969). Indeed, in Buckley v. Valeo, 424 U.S. 1 (1976), and Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the effectiveness of its decision for a period during which Congress could repair the flaws in the statute. Noncriminal, nonconstitutional cases include Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)Allen v. State Board of Elections, 393 U.S. 544 (1969)Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 (1968)Simpson v. Union Oil Co., 377 U.S. 13 (1964).
  40. Because of shifting coalitions of Justices, Justice Harlan complained, the course of retroactivity decisions "became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim." Mackey v. United States, 401 U.S. 667, 676 (1971) (separate opinion).
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