Back in the days of George Washington the supreme court decided that it would not advise the other governmental bodies on drafting laws or exercising any of the other powers of the other bodies’ powers.
Is there a term for this principle? Has it ever actually been coded into law? The precedent is supposedly followed even today by all* courts.
*There may be some intelligence or military oversight courts that don’t follow this principle, but that’s a matter for the debate forums.
As always, keep your nitpicks constructive (i.e. make sure it actually improves the readers’ understanding)
I don’t know why, separation of powers seems sufficient justification to me. We don’t want laws to be created by collusion between the courts and the legislature. It’s different than collusion between the executive and legislative branches because the checks and balances there are implemented in a different way.
I think an example of the problem would be the potential conflict of judicial interest for a justice who had advised on the constitutionality of a law when it is contested. Justices might even be disinclined to hear cases about laws where they offered an opinion at the time it was drafted.
A court will sometimes decline to review a matter by determining it is a Political Question, unsuitable for court review. In such cases it is said that the legislature has plenary power.
The concept you’re referring to is the prohibition against issuing advisory opinions, related to the case and controversy requirement cited to above. The Court has taken the view that it does not have the power to hear a case in the abscence of a justiciable controversy between opposing parties, and issuing advisory opinions in the absence of such a controversy violates that requirement.
Except some state constitutions do allow their state courts to give advisory opinions, even though their constitutions are based on the general concept of separation of powers. The prohibition on advisory opinions in the federal courts is based specifically on the “case or controversy” clause in the federal Constitution.
That would explain a lot of things. However in this case my point is that the SCOTUS could rely on separation of powers alone. In addition, as I read the Case or Controversy clause I don’t see how it applies in any unique way. Perhaps it is just something spelled out in the constitution to point to.
John Jay reached essentially the same conclusion, refusing Washington and Jefferson’s request for a legal opinion regarding the US’ obligations to Britain and France (this is the “case” the OP refers to). However, Jay’s reasoning was that the President did not have the authority to ask the Court to resolve legal questions for him, which is basically the opposite of what I understand to be your argument. The Case or Controversy Clause prevents a willing federal court from offering an advisory opinion, while the separation of powers doctrine merely prevents the executive and legislature from demanding one.
The general concept of separation of powers is not explicitly addressed in the Constitution, whereas the Case or Controversy clause is specifically spelled out as a requirement for judicial review under Article III of the Constitution. While you’re right insofar that there is no practical difference, the issue of standing is an area of law that is already fairly well developed and routinely applied in these types of cases. There’s no practical reason to rely on a nebulous “separation of powers” concept when you can cite textual authority.
But you can rely on non-constitutional powers to reach the same result. The High Court of Australia will not issue advisory opinions. The reasoning is based on the general nature of the judicial function.
It is obvious that, in the short term, it seems convenient where a legislature is considering treading on dangerous ground, to have the ultimate court of appeal locked in to agreement before you get under way, rather than wait to the end to have the whole project fail.
But this simple idea falls before the complexity of how the game would actually be played. Who could seek an advisory opinion? Only the government? Who would be entitled to appear as contradictor? The usual rules about party standing won’t work.
Further, any issue of interest is likely to be of sufficiently complex content that the temptation of the government to try starting with ambit claims and retreating as ground was lost would be irresistible, and it would be obvious this was happening, attracting counter-strategies from opponents. Watching the process of intense negotiation that goes into legislating, it is also clear that every draft would have to be sent for interim approval, slowing the whole process up, and choking the court’s other work off completely. The process would come to resemble a negotiation with the court (fundamentally a political function courts should rise above, otherwise the court would become in essence a third chamber of congress). This is sometimes expressed by the claim that the function of the court is to provide answers to questions in live dispute, not hypothetical ones.
I suppose my point is that you don’t need either constitutional powers or a doctrinaire approach to separation in the Montesquieu sense to reach the conclusion that advisory opinions are a bad idea. You can come to the same conclusion from first principles.
Except, in Canada, we’ve had advisory opinions (called "references) from the Supreme Court and the provincial courts of appeal for well over a century, without any of the dire consequences set out in your post. They’ve become an integral part of our system of judicial review, and some of the most important constitutional decisions are reference cases.
True, but those are executive branch opinions, and cannot be binding on the courts.
Reference decisions from the courts in Canada, while technically advisory only, are considered pretty much on par with decisions that come up through the ordinary court process. I can’t think of a case where a government has refused to accept a reference opinion as a statement of the law.
If I recall a lecture from first-year constitutional law correctly, however, Canada is somewhat unusual among the common-law countries in that it does allow for reference cases.
They seem to work well (for Canada and the provinces anyway); they answer problematic questions before legislative steps are taken that could later create numerous (and bigger) hassles and headaches.
Well, it’s not common, but it’s not unique to Canada.
• The provision in the Supreme Court Act is modeled on a similar reference provision in the Judicial Committee Act, which is used on some occasions by the British government.
As an example from the US, it appears that Massachusetts permits advisory opinions from its Supreme Judicial Court.
Notably, in the gay marriage context, it issued a February 3, 2004 Opinion of the Justices to the Senate regarding a proposed civil union law that the State Senate was considering after the Court had issued Goodridge v. Department of Public Health, which found that same-sex marriage was required under state law.
As the Court explains, the State Senate issued a order asking the Court to review the constitutionality of the proposed law as follows:
In response to the question, the Court issued a 4-3 opinion, in which the majority concluded:
My understanding is that this Massachussets procedure is unusual among U.S. states, but it is out there.