Supreme Court advisory opinions

[Dinsdale]

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.

[SuaSponte]

*Originally posted by Dinsdale *
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.

Actually, Dinsdale, the Supreme Court does not issue advisory opinions because the Constitution explicitly does not allow it. Pursuant to Article III, the Supremes only have jurisidiction over “cases and controversies.” “Cases and controversies” has long been interpreted to mean that the parties to the litigation must have actual rights or interests that will be affected by the case and its resolution.

Sua

[Dinsdale]

Thanks, Sua. I included that sentence due to some vague recollection of an entry level Am. Govt. class duiscussing early (Taney CJ?) decisions defining the Ct’s scope. Erroneous synaptic firings I’m sure. Thanks for the clarification.

But, does the Ct interpret what constitutes a “case” or a “controversy”? Hell, don’t worry about answering. If I’m unwilling to do my own research, no reason you should do it for me.

Any opinion on whether such limitation is desirable?

[SuaSponte]

Dinsdale, I’ll do the research (actually, I’m writing a motion to dismiss an appeal as moot right now, so I’m getting paid for the research!)

The basic requirements of a “case or controversy” are that (1) the parties have real interests that have been brought into question, and (2) the court has the power to issue an order that grants “meaningful relief” to the parties.

So, for prong 1, the parties must actuall be affected. If your state is planning to pave over a stand of old-growth forest, you have no interest if you’ve never been to said forest, and can’t bring suit. If, OTOH, you reguarly take walks through the forest, you can bring the suit.
For prong 2, if you are a prisoner who wishes to stay up until midnight and you sue for an injunction barring the warden from turning out your lights at 10:00 P.M., your case is moot if you are paroled before the case is decided. The Court can issue an order enjoining the warden, but if you aren’t in jail anymore, you don’t obtain any relief from it.

Advisory opinions fail prong 1. If the law doesn’t actually exist yet, no one’s interests have actually been harmed yet. Thus the courts lack jurisdiction and may not take on the case.

Sua

[Spavined_Gelding]

You will occasionally see, however, the US Supremes telegraphing their unprocessed judgment about what they may do with a fact/law situation at another place, in another time. Some of the Warren Court’s criminal procedure decisions were foreshadowed by earlier cases.

Also, occasionally a federal court will ask the state’s highest court for advice on what the law of the state is in specified fact/law situations. These are called “certified questions of law” and are as close to advisory opinions as you are likely to see.

There is, as noted by My Learned Brother, a Constitutional restriction on advisory opinions by the federal courts. It’s probably a good idea as a device to keep the courts from getting in bed with the other two branches.

[Northern_Piper]

We had a brief discussion on this issue last month: Pre-emptive Review of Laws by the Supreme Court.

Here’s what I posted then:

*Originally posted by Northern Piper *
Although Canada doesn’t have a constitutional “case or controversy” rule, in practice the courts have discretion to refuse to answer references if they conclude that the questions posed are too general or there is insufficient evidence to allow a decision to be made. See the Reference re Goods and Services Tax for an example - the Supreme Court declined to answer one of the questions on these grounds.

As well, because a reference is such a high profile matter, they tend to be used only for very serious questions, where a legal point, normally of a constitutional nature, is definitely in dispute, and there are parties on both sides of the issue. Reference re Firearms Act (Canada) is a good example, where the federal government and some of the provinces had very defined positions and a clear difference of opinion over the constitutional issue.

Another point is that because the reference can be asked in advance, it can be used in cases where it might be difficult just to wait for a regular court case to come up. The best example of that was the Patriation Reference, [1981] 1 S.C.R. 753 [no online cite that I can find] which was actually three separate references. Prime Minister Trudeau had announced that the federal Parliament would pass a resolution implementing fundamental constitutional chages, with or without provincial consent. Three provinces (Newfoundland, Quebec and Manitoba) responded by referring the patriation issue to their provincial courts of appeal, with subsequent appeals to the Supreme Court of Canada. That approach enabled the provinces to require the federal government to justify, in law, its proposed course of action before it went ahead and tried to make fundamental constiutional changes on its own initiative. Ultimately, the decision of the SCC forced a compromise on all the parties.

If the courts could only rule after the fact, once an amendment had passed by the British Parliament in response to the federal request, it could not have been reviewed by the courts. What would that have done to the political legitimacy of the new constitutional provisions, such as the Canadian Charter of Rights and Freedoms?

A similar example of the reference process being used to get guidance in advance was the Reference re Secession of Quebec. There were all sorts of uncertainties about the constitutional issues raised by the possiblity of Quebec secession. Which is better: to try and resolve those uncertainties in advance, so everyone knows the ground rules, or to have to deal with them on the fly, during a post-referendum period, without much chance of getting a judicial ruling in time?

Overall, it’s arguable that the reference procedure has increased the accountability of the government, by ensuring there is a way to get judicial review of matters that ordinarily would not get into court in time. For example, because of the difficulties of “undoing” a constitutional amendment, I understand that the U.S.S.C. has stated that the validity of constitutional amendments are a political matter, not a judicial matter. In Canada, the power to get advance rulings from the courts on such issues means that is not the case here, at least to the extent indicated by the Patriation Reference and Reference re Secession of Quebec.

By way of further historical background, the reference procedure is derived from English practice. It was accepted that the King could call on the judges to give advisory opinions on difficult legal issues, to ensure that the actions of the executive were lawful. This practice was formalised in the Judicial Committee Act passed around 1835 (don’t have the cite handy, but it was towards the end of William IV’s reign). That Act created the Judicial Committee of the Privy Council, which heard appeals on legal issues from the high courts of the colonies; in some Church of England matters; and in a few other miscellaneous topics. In addition, the Act gave the Crown the power to refer legal questions to the Judicial Committee. That provision was the inspiration for the reference provision of the Supreme Court Act in Canada.

[Northern_Piper]

I was on my way out of town the other day, so didn’t have time to post a few other links that you might find interesting, Dinsdale.

First, at the Constitutional Convention, Governor Randolph of Virginia presented a set of resolutions on behalf of the Virginia delegation. The Virginia Plan became the basis for the proceedings of the Convention.

The eighth resolution of the Virginia Plan proposed a “Council of Revision”, composed of the head of the executive and a number of the judiciary, with authority to review draft federal and state legislation prior to coming into force:

8. Resd that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch.

According to Farrand in The Framing of the Constitution, this proposal was the origin of the President’s veto power. The Convention eventually decided to vest this power (over federal legislation only, not state) in the President, acting alone, as a way to strengthen the standing of the Executive. The proposal to include the judiciary in the Council suggests that the veto was originally considerd to be a quasi-judicial power, to review the constitutionality/legality of bills. Vesting it in the President alone meant that the power eventually evolved into a purely political power.

After the Constitution was adopted, the issue of advisory opinions quickly came up, in the context of U.S. neutrality during the Napoleanic wars. President Washington sought advice from the Supreme Court on the rights and obligations of the federal government under American treaties with Great Britain and France, as a neutral party in the war. The Jay Court declined to give any advice, and explained their position in their Letter to President Washington, 1793:

We have considered the… Question stated in a Letter written to us [from the Washington administration, by Thomas Jefferson,] Secretary of State…

The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially 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, seems to have been purposely as well as expressly limited to executive Departments.

We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the united States.

Finally, there is the Muskrat Case [* Muskrat v. U.S.*, 219 U.S. 346 (1911)], where the Supreme Court considered a federal statute which conferred jurisidiction on the Court of Claims to entertain actions by certain named individuals to determine the constitutionality of certain congressional Acts dealing with Cherokee land claims. The Supreme Court struck down the Act conferring jurisdiction, on the basis that it infringed the “case or controversy” requirament and amounted to a jurisdiction to issue advisory opinions.