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A Doubtful and Perilous ExperimentAdvisory Opinions, State Constitutions, and Judicial Supremacy$

Mel A. Topf

Print publication date: 2011

Print ISBN-13: 9780199756766

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199756766.001.0001

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(p.193) Appendix C Annotated Bibliography

(p.193) Appendix C Annotated Bibliography

Source:
A Doubtful and Perilous Experiment
Publisher:
Oxford University Press

This bibliography offers a complete annotated listing of law journal articles appearing from 1885 through 2010 on state supreme court advisory opinions. Included also is a selection of articles on purported advising by federal courts and on advisory opinions in foreign jurisdictions.

Albertsworth, E. F. Advisory Functions in the Federal Supreme Court, 23 GEORGETOWN LAW JOURNAL 643 (1935).

This New Deal–era article supports an amendment to the U. S. Constitution to require the Supreme Court Justices to advise the other branches. Albertsworth points up the problems with retrospective judicial review, and argues that dissents and dicta are in fact advisory in nature, so that a distinct advisory duty is not a radical change.

Allen, C. K. Administrative Consultation of the Judiciary, 47 LAW QUARTERLY REVIEW (1931).

In this reply to Wade’s article favoring English judges advising the executive in order to increase executive efficiency in an age of bureaucracy, Allen argues that it “is exactly from the executive officer’s efficiency and zeal that we must save ourselves.” An advisory opinion for Allen is “judgment disguised as opinion,” and “it is not easy to see the advantage of imposing this additional [advisory] duty on judges.”

Anonymous. Note, 3 HARVARD LAW REVIEW 228 (1889).

A discussion of the Massachusetts Supreme Judicial Court’s recent (1889) refusal to answer a request for an advisory opinion. The author raises the question of whether the justices have the right to refuse in light of the mandatory language of the state constitution’s advisory opinion clause. The author concludes that the justices may refuse only if the inquiry “is not within the terms of the constitution” (which refers to rendering advice (p.194) on “important questions” and on “solemn occasions”), but it is for the legislature, not the justices, to decide when the question is important or the occasion solemn.

Anonymous. Note, 4 HARVARD LAW REVIEW 437 (1890).

This two-paragraph note argues that the New York legislature’s refusal to take the governor’s suggestion to seek advice from the state’s high court on a ballot reform bill was correct. Such advice would be improper absent constitutional authority.

Anonymous. Note, Extrajudicial Opinions, 10 HARVARD LAW REVIEW 50 (1896).

Noting that advisory opinions “have been given only with extreme reluctance,” the author is critical of them, given as they are without either a hearing or the assistance of counsel, and which “can hardly fail to be prejudicial to parties adversely interested, and to influence officials of lower tribunals, as well as to bias the subsequent opinions of the judges.” If, though, advisory opinions are treated as personal and not official, and kept out of the official record, then the objections disappear.

Anonymous. Comment, Advisory Opinions, 21 YALE LAW JOURNAL 83 (1911).

A note showing that the early English judges gave advisory opinions reluctantly, more “from reverence, respect and subordination to the King than from a sense of duty as judges.” The writer reviews several instances of requests from the king or House of Lords for advisory opinions.

Anonymous. Note, Constitutional Law—Powers of the Judiciary—Obligation of the Courts to Give Advisory Opinions, 26 HARVARD LAW REVIEW 655 (1912).

Noting that advisory opinions are typically given without hearing and often with imperfect knowledge of the facts, the author argues that “[t]hese considerations, together with a feeling of jealousy for the independence of the judiciary, have often caused the judges… to be reluctant to give such opinions.”

Anonymous. Note, Duty of the Court to Give Advisory Opinions, 2 MASSACHUSETTS LAW QUARTERLY 542 (1917). (Author is cited as Frederick Grinnell in Aumann (1937), at 33.)

The note reviews the early history of advisory opinions, including the justices’ reluctance to advise, and argues for the use of the “solemn occasion” requirement as a standard for acceptable advisory opinion requests.

Anonymous. Note, Constitutional Law—Powers of the Judiciary—Advisory Opinions—Obligation of Courts to Give Same, 34 HARVARD LAW REVIEW 673 (1921).

Citing a South Dakota refusal to render an advisory opinion, this note argues that the court there is bound to answer advisory opinions. “In refusing to answer, the court flies in the face of the state constitution.” The justices may refuse, however, if a request for advice is “patently unreasonable, frivolous, or in excess of the scope of the constitutional provision.”

Anonymous. Note, The Advisory Opinion and the United States Supreme Court, 5 FORDHAM LAW REVIEW 94 (1936).

(p.195) This New Deal–era note discusses proposals in Congress to amend the U.S. Constitution to permit or require the Supreme Court to give advisory opinions, the proposals appearing after the Court declared the National Industrial Recovery Act of 1933 (NIRA) unconstitutional in Schechter v. United States, with the resulting “waste and confusion.” The author supports such proposals and argues that Supreme Court advisory opinions should be binding and so have “the dignity of a decision.”

Anonymous. Note, Advisory Opinions and the Constitutionality of Statutes, 69 HARVARD LAW REVIEW 1302 (1956).

The author reviews some criticisms and defenses of advisory opinions, concluding that “careful use” of the opinions may avoid the harm “frequently caused by unconstitutional statutes.”

Anonymous. Note, The Validity of the Restrictions on the Modern Advisory Opinion, 29 MAINE LAW REVIEW 305 (1978).

A study of the history and jurisprudence of the advisory opinion in Maine, arguing that the Maine justices, despite the mandatory language of Maine’s advisory opinion provision, have restricted the scope of their advising by narrow construction of the phrase “solemn occasion.” The note offers several defenses of the Maine justices’ assertion of a right not to advise.

Anstead, H. L., et al. The Operation and Jurisdiction of the Supreme Court of Florida, 29 NOVA LAW REVIEW 431 (2005).

This overview of the Florida supreme court (one of whose four authors was then the present chief justice and another a former chief justice) includes a section on advisory opinions, which is limited to a brief review of advisory opinion jurisprudence in Florida.

Aumann, F. R. The Supreme Court and the Advisory Opinion, 4 OHIO STATE LAW JOURNAL 21 (1937).

This New Deal–era study of proposals to require the U. S. Supreme Court to give advisory opinions focuses on the long delay between the passage of a law and the Court’s declaring it unconstitutional, an issue raised by the then-recent rulings on the unconstitutionality of New Deal legislation. Aumann reviews examples of the long delays but concludes that the harm of advisory opinions outweighs the good: “the disadvantages of advisory opinions are numerous.”

Bamberger, M. A. RECKLESS LEGISLATION: HOW LAWMAKERS IGNORE THE CONSTITUTION (Rutgers University 2000).

This book has a section on advisory opinions (169–83), in which the author argues that the use of advisory opinions supports his view that legislatures knowingly pass unconstitutional legislation for political reasons. Further, “the benefits of the advisory opinion practice are generally outweighed by its practical problems.”

(p.196) Barry, J. T. The Council of Revision and the Limits of Judicial Power, 56 UNIVERSITY OF CHICAGO LAW REVIEW 235 (1989).

A study of the history of proposals for a council of revision made at the 1787 convention and in New York, to serve as an initial reviewer of a statute’s constitutionality. The convention in Philadelphia rejected the proposal “because of the dangers of involving judges in the lawmaking process.”

Bender, T. R. Rhode Island’s Public Importance Exception for Advisory Opinions: The Unconstitutional Exercise of a Non-Judicial Power, 10 ROGER WILLIAMS UNIVERSITY LAW REVIEW 123 (2004).

The author is critical of the Rhode Island justices for too freely waiving, or simply ignoring, their established restrictions on the ground of purported public importance. He argues that “on every occasion the justices issue an advisory opinion pursuant to that [public importance] exception, they act outside their constitutional authority; that is, they engage in an unconstitutional exercise.”

Bledsoe, M. M. The Advisory Opinion in North Carolina: 1947 to 1991 at 70 NORTH CAROLINA LAW REVIEW 1853 (1992).

North Carolina’s justices are unusual in that they have rendered advisory opinions with neither statutory nor constitutional authority. This study of the state’s advisory opinions concludes that they should be discontinued. (The justices have not given advisory opinions since 1985, stating that the opinions violate the state constitution’s separation of powers clause.)

Burden, K. “State Constitutional Law – Separation of Powers – A “Judicial Trigger Provision” violates the Kansas Constitution’s Separation of Powers Doctrine by Requiring Courts to Issue an Advisory Opinion,” 40 Rutgers Law Journal 825 (2009).

An analysis and criticism of State ex rel. Morrison v. Sebelius, which ruled that a Kansas statute’s “judicial trigger” provision was unconstitutional since it required the state supreme court to give an advisory opinion, a violation of separation of powers. The article argues that the opinion did not adequately rely on state case law, but merely adopted “the federal case or controversy requirement, without any searching analysis of state constitutional pedigree on the issue.”

Calogero, P. F. Advisory Opinions: A Wise Change for Louisiana and Its Judiciary?, 38 LOYOLA LAW REVIEW 329 (1992).

Calogero opposes giving the Louisiana supreme court justices advisory authority. The article, whose author was then chief justice in Louisiana, was prompted by a bill introduced in 1990 that would require the justices to render advice on request of a majority of either house of the legislature, on constitutional questions of legislative powers regarding revenue and finance. The article reviews arguments for and against advisory opinions.

(p.197) Carberry, C. M. The State Advisory Opinion in Perspective, 14 FORDHAM LAW REVIEW 81 (1975).

An extensive analysis of the role advisory opinions have played in the advisory states from 1960 to 1973. While finding advisory opinions reasonably acceptable, the author concludes that it is not likely that other states will adopt supreme court advisory opinions.

Clovis, P. C. and C. M. Updegraff. Advisory Opinions, 13 IOWA LAW REVIEW 188 (1927).

Arguing that “a large percentage” of laws passed each year is unconstitutional and that such laws adversely affect “important social and economic interests,” the authors favor the advisory opinion as preventative justice—a logical means “of minimizing unconstitutional acts through the expertise of the justices.”

Dahlquist, R. P. Advisory Opinions as Extrajudicial Activity and Judicial Advocacy: A Historical Perspective, 14 SOUTHWESTERN UNIVERSITY LAW REVIEW 46 (1983).

A history of the U. S. Supreme Court’s relation to advisory opinions, with focus on Hayburn’s Case and on the Court’s 1793 refusal to advise the president. It discusses purported instances of the Court’s informal advising and looks at the proposed New Deal legislation to give the Court advisory authority.

Davidson, J. F. The Constitutionality and Utility of Advisory Opinions, 2 UNIVERSITY OF TORONTO LAW JOURNAL 254 (1937).

A comparative review of the advisory opinion in Canada and the United States, especially of its utility with respect to issues regarding trade and commerce. The author’s focus is on the need for factual details in court opinions on these issues, arguing that the advisory function is “seriously handicapped” by the lack of such facts in a court’s review of legislation on trade and commerce.

Dubuque, H. A. The Duty of Judges as Constitutional Advisors, 24 AMERICAN LAW REVIEW 369 (1890).

This early article on advisory opinions argues that the Massachusetts justices have no right to refuse to render advice in light of the mandatory language of the Massachusetts constitution’s advisory opinion provision. The justices’ sudden first refusal to advise in 1877 (122 Mass. 160), ninety-seven years after adoption of the provision in Massachusetts, was not permissible: “The obligation to answer is absolute.”

Edsall, P. W. The Advisory Opinion in North Carolina, 27 NORTH CAROLINA LAW REVIEW 297 (1949).

A comprehensive study of advisory opinions in North Carolina, where the justices have rendered advice without either statutory or constitutional authority, but rather as a “duty (p.198) of courtesy and respect.” Edsall observes that “the advisory function has become a powerful factor in legislation and administration” and concludes that “advisory opinions are certainly entitled to such weight as their intrinsic merit warrants.”

Ellingwood, A. R. DEPARTMENTAL COOPERATION IN STATE GOVERNMENT (Macmillan 1918).

This book, the only book (before the present one) devoted to state supreme court advisory opinions, is a full and comprehensive treatment of the advisory opinion, even to inclusion of a list of all state advisory opinions rendered to 1917. Ellingwood, an enthusiastic proponent of the advisory opinion, viewed it as a “useful instrument” of government that supported interbranch cooperation. A contemporary reviewer, however, opined in the American Political Science Review (vol. 13, p. 155) that Ellingwood attached “too great an importance to the influence of advisory opinions in promoting cooperation.”

Emery, L. A. Advisory Opinions from Justices, 2 MAINE LAW REVIEW 1 (1908).

In the first of two articles on the Maine constitution’s advisory opinion clause, then chief justice Emery called for the sparing use of “an undesirable provision,… if indeed it must be used at all.” He agreed that, at best, the provision should be seen as “an extraordinary power to be exercised only in extreme cases, in grave crises.”

________. Advisory Opinions of the Justices. No. II, 11 MAINE LAW REVIEW 15 (1917).

In his second article on advisory opinions, Emery, now former chief justice, still “deprecates” Maine’s advisory opinion provision. The article discusses the extent to which the justices may refuse to advise in view of the mandatory language of Maine’s provision, by which advising is “required” of the justices. Noting that the requesting authority must ask only “important questions” and only on “solemn occasions,” Emery argues that the requesting authority, not the justices, have the “right to determine both the importance and the occasion.”

Entman, J. F. Flawed Activism: The Tennessee Supreme Court’s Advisory Opinions on Joint Tort Liability and Summary Judgment, 24 MEMPHIS STATE UNIVERSITY LAW REVIEW 193 (1994).

The Tennessee supreme court has no authority to render advisory opinions, but Entman argues that the court’s activism, while itself commendable, “is flawed” by the court’s “penchant for issuing advisory opinions. At times the court’s enthusiasm for lawmaking seems to eclipse its duty to resolve the dispute before it,” resulting in decisions unsatisfactory either as law or as dispute resolution. Entman call for the court to “honor one of the first principles of judicial restraint—the rule against advisory opinions.”

Farina, C. R. Supreme Judicial Court Advisory Opinions: Two Centuries of Interbranch Dialog, in THE HISTORY OF THE LAW IN MASSACHUSETTS: THE SUPREME JUDICIAL COURT 1692–1992 at 353–92 (R. K. Osgood ed., Supreme Judicial Court Historical Society 1992).

(p.199) In this historical analysis of advisory opinions in Massachusetts, Farina observes that Massachusetts has undertaken a “a two-century experiment in what many have said to be impossible: a constitutional commitment to both a government of separated powers and a judiciary that renders advisory opinions to the legislature and executive.” Advisory opinions serve to resolve disputes about constitutional rights and obligations that the “political process is not very good at resolving.”

Field, O. P. The Advisory Opinion—An Analysis, 24 INDIANA LAW JOURNAL 203 (1949).

A study of advisory opinions in five states (Colorado, Maine, Massachusetts, New Hampshire, South Dakota) that looks into the extent to which the advisory opinion remedies purported defects of judicial review of legislation after enactment into law. All advisory opinions rendered in these states are analyzed by such criteria as time, subjects of the requests, dissents, and lengths of the opinions. Field concludes that the ordinary process of judicial review is “seriously inadequate.” The advisory opinion is a “supplement to” but not a substitute for judicial review.

Frankfurter, F. A Note on Advisory Opinions, 37 HARVARD LAW REVIEW 1002 (1924).

This response to Manley Hudson’s favorable view of advisory opinions attacks them as “ghosts that slay.” It is, for Frankfurter, “extremely dangerous to encourage extension of the device of advisory opinions to constitutional controversies.” Denying that “constitutionality is a fixed quantity,” Frankfurter asserts that concepts like liberty and due process derive meaning “only if referred to adequate human facts. Facts and facts again are decisive.”

Grinnell, F. W. Letter, 10 AMERICAN BAR ASSOCIATION JOURNAL 522 (1924).

In this brief letter Grinnell opposes proposals to give the U. S. Supreme Court advisory opinion duties. The Court “would be overwhelmed with a constant stream of questions on every conceivable subject.” The legislative tendency “to ‘pass the buck’ to the Court and then abuse it for its decisions would be enormously increased.” While advisory opinions may have value in some states, they would be “a serious mistake for the nation.” Published the same year as Hudson’s article supporting advisory opinions and as Frankfurter’s attack on them, the letter may be a response to Progressive movement calls for making the Court a “cooperative body.”

Hagemann, J. F. The Advisory Opinion in South Dakota, 16 SOUTH DAKOTA LAW REVIEW 291 (1971).

An analysis and evaluation of the South Dakota justices’ sparing use of the advisory opinion. The justices express the “standard objections” to advisories and base their limitations on advising on those objections, despite South Dakota’s constitution requiring the justices to render advisory opinions to the governor. Hagemann concludes that as long as the justices continue to respect the advisory opinion process, the process can be “a useful device in the scheme of South Dakota government.”

(p.200) Healy, T. The Rise of Unnecessary Constitutional Rulings, 83 NORTH CAROLINA LAW REVIEW 847 (2005).

Healy undertakes an extensive review of the U. S. Supreme Court’s rendering of unnecessary constitutional rulings, especially in cases of qualified immunity, habeas corpus, Fourth Amendment good faith searches, and harmless error. He argues that this is “part of a larger trend toward judicial supremacy.” Addressing the question of whether such rulings violates Article III’s ban on advisory opinions, he concludes that they do.

Hoffman, R. K. Why Not Advisory Opinions for Illinois?, 31 CHICAGO-KENT LAW REVIEW 141 (1952).

No reason, Hoffman replies. In Illinois “there is ample justification for the use of the advisory opinion.” This includes efficiency in Illinois government, “a quality most conspicuously absent in our present system,” and the expense and burden of unconstitutional legislation.

Hudson, M. O. Advisory Opinions of National and International Courts, 37 HARVARD LAW REVIEW 970 (1924).

This discussion of advisory opinions at home and abroad favors their use in international controversies. Hudson raises the pragmatic question that, if a ruling on a statute’s unconstitutionality applies to the statute in general (and not just to the parties’ case from which the ruling arose), then why is the case itself necessary? Allowing American courts to rule on constitutionality of legislation before it is passed could help prevent “legislative stultification.”

________. The Effect of Advisory Opinions of the World Court, 42 AMERICAN JOURNAL OF INTERNATIONAL LAW 630 (1948).

This 1948 “editorial comment” complains that even informed lawyers claim that advisory opinions of the World Court are seen by all, including the public, as binding judgments. This mistaken view may have developed because some parties, which are usually national governments, have themselves agreed to be bound by the Court’s advisory opinions. But this is at their discretion. Hudson insists that the status of advisory opinions of the World Court (under the United Nations in 1948) had not changed since the Court’s creation under the League of Nations (dissolved in 1946). The court’s advisory opinions are nonbinding, intended only as guidance to the parties seeking advice.

Huffman, J. L. and M. L. Saathoff. Advisory Opinions and Canadian Constitutional Development: The Supreme Court’s Reference Jurisdiction, 74 MINNESOTA LAW REVIEW 1251 (1990).

An extensive study of the advisory opinion in Canada, where courts have advisory jurisdiction on both national and provincial levels. By one estimate, the authors note, over 25 percent of leading decisions were made in advisory opinion proceedings. (p.201) The authors argue that the “Canadian experience… suggests that advisory opinions can prove beneficial” and that their dangers are “far fewer than American lawyers and judges generally assume.”

Jaconelli, J. Hypothetical Disputes, Moot Points of Law, and Advisory Opinions, 10 LAW QUARTERLY REVIEW 587 (1985).

With focus on England and international courts, Jaconelli studies the “theoretical and practical problems posed by an activity which diverges markedly from the judicial role as it is traditionally conceived.” He notes that advisory opinions have special value in international courts, where there is less frequent litigation and so less opportunity to clarify law thereby, and where the parties are sovereign states against whom enforcing coercive decrees is difficult. The advising powers of international courts, however, tend to be “severely limited.”

Jay, S. MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES (Yale University 1997).

This book offers a comprehensive study of the U. S. Supreme Court’s precedent-setting refusal to offer an advisory opinion to the first president. Jay argues that the Court’s 1793 refusal was based less on constitutional principles it cites (mainly separation of powers) and more on political considerations, including preventing the Court from becoming embroiled in a major conflict between Congress and the executive over control of foreign affairs. Jay believes that advisory opinions were not incompatible with separation of powers as understood in both England and America in the late eighteenth century, as evidenced by the several states whose early constitutions both mandated separation and provided for advisory opinions. (But see Topf (2001), arguing that the earliest advisory opinion clause, in the 1780 Massachusetts constitution, was included in order to constitutionalize it since advising was likely seen as offending the separation provision.)

Jay, S. Servants of Monarchs and Lords: The Advisory Role of Early English Judges, 38 AMERICAN JOURNAL OF LEGAL HISTORY 118 (1994).

In light of England’s acceptance of advisory opinions, and its rejection of separation of powers as grounds for banning them, Jay’s article presents “a historical picture of a different way of conceptualizing the role of courts in society,” where there has been a “long tradition of requiring judges to serve as advisors to the executive and the House of Lords.” Jay looks into the origins of the English judges’ advising role, stemming in part from judges originally being surrogates and servants of the king. Rendering advice nonetheless declined after 1760, for historical rather than doctrinal reasons.

Kannon, P. M. Advisory Opinions in Federal Courts, 32 RICHMOND LAW REVIEW 769 (1998).

Kannon argues that the claim that federal courts are barred from rendering advisory opinions is not accurate. While federal courts may not be compelled to advise, “under circumstances they themselves define, these courts may elect to give advice.” (p.202) The device by which federal courts may advise include the practice of “assuming without deciding” and dicta, because statements “not necessary to support the decision amount to an advisory opinion.” Advisory dicta, Kannon says, may be useful as “guidelines” but risk weakening the judicial process.

Katyal, N. K. Judges as Advicegivers, 50 STANFORD LAW REVIEW 1709 (1998).

The federal judiciary “has used, and should continue to use, a range of interpretive and decision-making techniques to give advice to the political branches and state governments.” Despite judicial declarations against advisory opinions “the Justices [of the U. S. Supreme Court] often act to provide advice in their published opinions,” typically as dicta, and thereby providing “federal and state governments with ways to avoid constitutional problems and sort out the constitutional issues politically instead of relegating such questions to the judiciary.” Advice-giving is “a hidden fourth power for the Court.” (The other three are striking down legislation, validating legislation, or doing neither.) See Mikva’s response to this article, below.

Kennedy, R. H. Advisory Opinions: Cautions About Non-Judicial Undertakings, 23 UNIVERSITY OF RICHMOND LAW REVIEW 173 (1989).

Kennedy focuses on a 1987 Florida advisory opinion to show that advisory opinions “have the potential to hazard substantive error, to effect a redistribution of governmental authority, and to damage a court.” The 1987 opinion was a response to the governor’s request for advice on the constitutionality of an already enacted statute. The opinion was rendered despite the court’s longstanding bar against advising on enacted statutes. Kennedy discusses the costs of such “largely unexplained” intrusions by the judicial branch.

Marcus, M. Separation of Powers in the Early National Period, 30 WILLIAM AND MARY LAW REVIEW 269 (1989).

Marcus argues that in the early years of the republic, as the government struggled to get separation of powers doctrine straight, the U. S. Supreme Court’s Justices thought of themselves as “acting in two ways: as an institution and as individuals.” This division appeared to work well regarding the Justices’ relations with the other branches. Hence, as an institution the Court declined to give an advisory opinion to the president in 1793, but individual Justices felt free to give advice to members of the legislature or executive.

McKeever, P. C. and B. O. Perry. The Case for an Advisory Function in the Federal Judiciary, 50 GEORGETOWN LAW JOURNAL 785 (1962).

This article supports advisory opinions from the federal judiciary because “a measure of preventative jurisprudence is needed in the area of judicial review” in order to minimize the danger of unconstitutional legislation. In light of this need and “the lack of any absolute constitutional prohibition of an advising function, the voluntary acceptance by the (p.203) Justices of the Supreme Court of this method of intergovernmental cooperation is justified and indicated.” Historically, judicial power no more included judicial review than it did advisory opinions, the former’s acceptance and the latter’s rejection essentially products of political pressures. Both, the authors, say, are basically similar.

Mikva, A. J. Why Judges Should Not Be Advicegivers: A Response to Professor Neal Katyal, 50 STANFORD LAW REVIEW 1709 (1998).

A reply to Katyal’s thesis that advice-giving by the federal judiciary would promote democratic values or effective policymaking. Mikva questions the accuracy of Katyal’s assertion that judges use dicta to give advice. His “fatal flaw” is the “notion that there is something in judges’ status or stature that qualifies them to give… advice to elected officials.” Katyal’s article is cited above.

Persky, J. D. Ghosts That Slay: A Contemporary Look at State Advisory Opinions, 37 CONNECTICUT LAW REVIEW 1155 (2005).

Persky’s comprehensive study of state advisory opinions argues that “judicious use of the modern advisory opinion has strengthened, not weakened, representative government by preventing both public reliance on facially unconstitutional legislation and governmental expenditures on programs or initiatives likely to face a successful challenge.” Attacks on advisory opinions “are unsupported by the contemporary data.” Persky offers an extensive analysis of the problems related to the purportedly nonbinding nature of advisory opinions.

Rhodes, J. E. Advisory Opinions, 6 MAINE LAW REVIEW 28 (1912).

Critical of advisory opinions, Rhodes believes that the judiciary should not be required to “pass upon either public or private rights by ex parte proceedings.” The objections to advisory opinions, chiefly separation of powers and due process, are evidence that requiring justices to advise “is undesirable in our fundamental law.”

Robinson, W. H. Limitations upon Legislative Inquiries under Colorado Advisory Opinion Clause, 4 ROCKY MOUNTAIN LAW REVIEW 237 (1932).

An analysis of the nine restrictions on advisory opinions imposed by the Colorado supreme court, “in its reluctance to give advisory opinions.” Robinson concludes that the restrictions are “tantamount to saying that the court will refuse to entertain a question whenever the judges in their discretion decide not to answer it,” and will give advisory opinions “only when the court so desires.”

Sands, C. D. Government by Judiciary—Advisory Opinions in Alabama, 4 ALABAMA LAW REVIEW 1 (1951).

Sands reviews advisory opinion practice in Alabama, one of the two states (with Delaware) that provide for them by statute rather than by constitution. The supreme courts in both states, Sands notes with some skepticism, have ruled the statutes (p.204) constitutional because advisory opinions are not judicial functions, so that the justices, not acting judicially, are free to “go fishing, play golf, or advise the governor and legislature on matters on constitutional law.” He reviews the justices’ restrictions on rendering advisory opinions, established soon after the statute passed in 1923, and discusses the extent to which advisory opinion practice in Alabama adheres to the restrictions.

Sirvet, E. and R. B. Bernstein. John Jay, Judicial Independence, and Advising Coordinate Branches, 2 JOURNAL OF SUPREME COURT HISTORY 23 (1996).

Before the U. S. Supreme Court’s 1793 refusal to advise the executive, the Justices frequently responded to requests for advice. This article reviews several instances of Chief Justice Jay advising President Washington, usually in an exchange of letters. Jay, however, declined to advise where he thought it inappropriate or unnecessary. The 1793 request for advice, regarding Washington’s neutrality policy in the war between France and Britain, was more formal, and for reasons not entirely clear, the Justices responded by refusing to advise based on concerns about separation of powers, a position they have maintained ever since.

Smiljanich, T. A. Advisory Opinions in Florida: An Experiment in Intergovernmental Cooperation, 24 UNIVERSITY OF FLORIDA LAW REVIEW 328 (1972).

Smiljanich examines advisory opinion practice in Florida, concluding that the justices there “are expanding their power to render advisory opinions,” mainly in order to “reach vital questions of governmental importance.” The author favors the advisory opinion as an efficient solution regarding problems of executive relations with the judiciary and legislature.

Smith, A. K. Advisory Opinions in North Carolina, 7 NORTH CAROLINA LAW REVIEW 449 (1929).

This brief note discusses advisory opinions in North Carolina, where the justices have neither constitutional not statutory warrant to advise, but have occasionally done so anyway despite the state constitution’s separation of powers provision, as an act of “courtesy and respect,” as the justices put it in 1870. This view, Smith says, “has persisted.” Smith was writing in 1929. A half-century later the justices would decline to continue rendering advice.

Stevens, G. N. Advisory Opinions—Present Status and an Evaluation, 34 WASHINGTON LAW REVIEW 1 (1959).

Stevens offers a general analysis of advisory opinions in all the advisory states together with an account of refusals to advise in ten nonadvisory states. He concludes that advisory opinions’ “disadvantages far outweigh its actual and potential advantages.”

Thayer, J. B. Advisory Opinions, in LEGAL ESSAYS 42–59 (1908; first published 1885).

(p.205) In 1883 the Rhode Island justices advised the senate that the state constitution does not permit calling of a constitutional convention (14 R.I. 649). Former chief justice Charles Bradley, apparently concerned about the justices’ authority to offer such advice, asked Thayer, then at Harvard Law School, to write on advisory opinions, and this piece first appeared in 1885 as an appendix in Bradley’s pamphlet on constitutional amendments in the state. In this earliest article on the law of advisory opinions, Thayer reviews advisory opinion provisions and their English history, discussing especially the nonbinding nature of advisory opinions in both countries. This emphasis may have arisen from the skepticism about the Rhode Island justices’ 1883 advisory opinion (which Frankfurter’s article uses as an example of ill-advised advisory opinions). Thayer concludes that “it is of grave importance that the notion of their binding quality should be dispelled.”

Topf, M. A. The Advisory Opinion on Separation of Powers: The Uncertain Contours of Advisory Opinion Jurisprudence in Rhode Island, 5 ROGER WILLIAMS UNIVERSITY LAW REVIEW 385 (2000).

This article is devoted to a single state supreme court advisory opinion. The opinion addresses the question of whether members of the Rhode Island legislature may, by statute, sit on executive branch boards and commissions or appoint others to do so. The focus is on the fact that rendering this advisory opinion violated the justices’ restrictions on advisory opinions, which they evaded by declaring a public importance exception. The article argues that the justices overuse the exception (in the fifteen-year period studied, more than the other nine advisory states put together), impoverishing public discourse and confusing standards for rendering advisory opinions.

________. The Jurisprudence of the Advisory Opinion Process in Rhode Island, 2 ROGER WILLIAMS UNIVERSITY LAW REVIEW 207 (1997).

A study of advisory opinion theory and practice in Rhode Island, applying arguments of proponents and opponents of advisory opinions. The article concludes that the Rhode Island justices, like their colleagues in other advisory states, have had doubtful success in protecting the legitimacy of advisory opinions.

________. The Origins and Early History of Supreme Judicial Court Advisory Opinions in Massachusetts, 7 MASSACHUSETTS LEGAL HISTORY 21 (2001).

This article attempts to explain the appearance of the first advisory opinion provision in the 1780 Massachusetts constitution, still in effect, especially with respect to why this common and proper practice had to be constitutionalized. The record is very sparse, but the answer appears to be that its purpose was to make the justices, as advisors, exempt from the strict bans on plural office holding. The article also studies the early history of the advisory opinion, tracking how it became widely seen as violating such basic doctrines as separation of powers.

________. State Supreme Court Advisory Opinions as Illegitimate Judicial Review, 2001 LAW REVIEW OF MICHIGAN STATE UNIVERSITY—DETROIT COLLEGE OF LAW 101 (2001).

(p.206) Topf argues that advisory opinions are de facto judicial review, owing in good part to their being binding in effect if not in theory. The justices’ claims that their advisory opinions are nonbinding amount to “little more than a jurisprudential fig leaf.” As such it is difficult to defend the legitimacy of the advisory opinion process.

Veeder, V. V. Advisory Opinions of the Judges of England, 13 HARVARD LAW REVIEW 358 (1900).

Veeder studies the role of English judges as advisors to the House of Lords. (The Scottish judges rarely, and Irish judges never, have functioned as advisors.) Veeder comments that cases on which the judges advised show “plainly the haphazard way in which the law has been developed,” especially given the “relative unimportance of most of these cases.”

Wade, E. C. S. Consultation of the Judiciary by the Executive, 182 LAW QUARTERLY REVIEW 169 (1930).

Wade argues that the growth in quantity and complexity of law in Britain has in turn resulted in the growth of administrative law, which has created two problems. First is the difficulty of controlling delegated legislation, and second is “encroachment of administrators into the judicial sphere.” Wade defends judicial advice to the executive on grounds of the expense and inefficiency of litigation. (C. K. Allen’s “Administrative Consultation of the Judiciary” is a reply to Wade.)

Warren, B. W. “Memorial to Arthur Prentice Rugg,” 302 Mass. 635 [Supplement] (1940).

A transcript of one of the speeches given in the Massachusetts Supreme Judicial Court as memorial to Chief Justice Rugg and recorded in the Massachusetts Reports. Over half the address, without explanation, is devoted to defending advisory opinions, pointing to several advantages. Among them is that advisory justices are not burdened with the presumption of a proposed statute’s constitutionality, which provides a “flexibility” that prevents passage of doubtful legislation. Warren notes that during Chief Justice Rugg’s tenure some thirty-seven advisory opinions, nearly half of those then given, held measures unconstitutional, a far higher proportion than in litigated cases challenging constitutionality.

Westling, R. W. Advisory Opinions and the “Constitutionally Required” Adequate and Independent State Grounds Doctrine, 63 TULANE LAW REVIEW 379 (1988).

This article, noting that the “revival of state constitutions” has given rise to debate over the limits of the U. S. Supreme Court’s power to review state constitutional decisions, focuses on the doctrine of adequate and independent state grounds as one such limit. Westling argues that the doctrine is based on the advisory opinion ban, and that the advisory opinion rationale underlying the doctrine is a constitutionally required rule arising from Article III.

(p.207) Wheeler, R. Extrajudicial Activities of the Early Supreme Court, 1973 SUPREME COURT REVIEW 123 (1973).

A study of the early (pre-Marshall) Supreme Court’s rejection of demands for official but extrajudicial service, in the face of a Congress and a president anxious to adopt the English practice of obliging judges to engage in extrajudicial activity. Wheeler focuses on Hayburn’s Case (131–39), on various positions of Chief Justice Jay (139–44), and on rendering advisory opinions (144–58). Wheeler concludes that before the Court’s 1793 refusal to advise President Washington, the record “is ambiguous as to whether the early Justices looked favorably on advisory opinions,” since ex officio extrajudicial activity “was generally accepted,” but the role of official advisors to the executive and legislature was apparently seen as more doubtful.

Williams, W. C. Constitutional Law: Premature Federal Adjudication Through the Plain Statement Rule, 8 UNIVERSITY OF FLORIDA JOURNAL OF LAW AND PUBLIC POLICY 129 (1996).

Williams argues that the U. S. Supreme Court’s decision in Michigan v. Long, regarding the doctrine of adequate and independent state grounds, allows the Court to reach issues already resolved on solid state grounds, in effect rendering advisory opinions. Long “will increase the propensity of the Court to give non-dispositive adjudications,” and in fact “in Supreme Court cases reviewing ambiguous state decisions after Long, the frequency of advisory opinions has risen.” (p.208)