Initial disclaimer: tho IAAL, IANA Constitutional scholar, and know nothing about court systems in countries other than the US. Corrections to any of my misunderstandings or unintentional misrepresentations are welcome.
In the US the SCt does not issue advisory opinions. That is, it acts only when presented with a dispute between specific parties. Further, my recollection is that the US Ct’s practice is based, not in the Constitution, but instead in the Ct’s own decisions.
This a.m. I read an article in the paper concerning Canada’s efforts to legitimize same-sex unions. The article said the Canadian parliament was submitting the proposed legislation to their SCt to get opinions on various aspects of the law.
This really jumped out at me, because it is so different from the US situation. Here, the legislature would simply pass the law, and it would not get before the courts until some party initiated a lawsuit over it.
On the one hand, the Canadian system seems as tho it might prevent some wrongheaded legislation, and might temper some of the more outlandish political grandstanding. The US approach, focussing solely on engaged disputes, could be seen as encouraging our highly litigious socirety.
OTOH, however, it seems like a lot of power would be invested in the judiciary. In the US at least, federal judges are not elected, but instead are appointed (subject to Senate approval) for life. It also would slow down legislation, as the article suggested that this matter would have to be placed on the Ct’s regular docket.
I do not know what the Canadian parliament’s options are following their Ct’s opinion. Nor do I know whether parliament is required to submit legislation for review. And I have no idea whether the Canadian or US approaches are more common throughout the world.
Was wondering if any of you had any opinions as to whether it was desirable for a nation’s top court to issue advisory opinions on proposed legislation or other matters.