Why the Supreme Court never gets any "Dear John" letters: Advisory opinions in historical perspective

Georgetown Law Journal, Nov 1998 by Pushaw, Robert J Jr

Why the Supreme Court Never Gets Any "Dear John" Letters: Advisory Opinions in Historical Perspective

MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES. By Stewart Jay. (New Haven, Connecticut: Yale University Press, 1997) Pp. x, 302. $35.00.

REVIEWED BY ROBERT J. PUSHAW, JR*

In 1793, President George Washington directed Secretary of State Thomas Jefferson to ask the Supreme Court to answer numerous legal questions about America's neutral status in the European wars following the French Revolution. The Washington Administration, however, recognized a threshold issue: "whether the public may, with propriety, be availed of advice on these questions."' A few weeks later, five Justices sent the President the following reply:

The Lines of Separation drawn by the Constitution between the three Departments of Government-their 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 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 the 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.

We have the Honor to be, with perfect Respect, Sir, your most obedient and most h[um]ble Servants.2

At first glance, Stewart Jay's devotion of three hundred pages to these three seemingly straightforward sentences seems a bit like shooting a hummingbird with an AK-47. Nonetheless, he justifies his detailed treatment by demonstrating that this "Letter of the Justices" emerged from a complicated political background that has been almost entirely ignored.

Rejecting the prevailing view that constitutional principles dictated the Court's refusal to provide the requested advice, Jay offers a political explanation. He argues that the politically savvy Federalist Justices used the Letter to avoid direct involvement in the republic-threatening struggle between the President and Congress over control of international relations, yet to hint subtly that such matters were committed to the executive. This suggestion, coupled with the behind-the-scenes maneuvering of several Justices (especially John Jay), effectively promoted Alexander Hamilton's Federalist foreign policy goals of executive domination and alliance with England at the expense of his bitter cabinet rival Jefferson, an ardent supporter of both the French republicans and legislative leadership in foreign affairs.3

Professor Jay develops this novel thesis through a series of rigorous arguments supported by an impressive collection of primary and secondary sources. He writes elegantly and is scrupulously fair in addressing opposing views and inconsistent evidence. In short, Jay's book is exemplary legal history, and I strongly recommend it to anyone interested in the origins of the American judiciary.

Although Professor Jay convincingly shows that partisan politics had a much greater influence on the Justices' decision than anyone has previously supposed, he ultimately does not persuade me that constitutional factors played a relatively minor role.4 On the contrary, I believe the Court correctly concluded that issuing public advisory opinions would conflict with the Constitution's scheme of separation of powers, whereby Article II authorized the President to require written opinions exclusively from his executive subordinates,5 and Article III empowered federal courts to render legal opinions only "in the last resort" after the executive had acted and litigation had arisen.6

By exalting politics over constitutional theory, Professor Jay continues a more general trend in recent writing about American judicial history and separation of powers. My approach, by contrast, emphasizes the Framers' deep commitment to certain fundamental ideas, which should not be obscured by their simultaneous desire to draft a Constitution that would solve practical problems of governance and allow considerable leeway for politics. I will discuss some of these broader historiographical issues after I summarize and critique Jay's work.

I. AN OUTLINE AND ANALYSIS OF PROFESSOR JAY'S BOOK

Professor Jay argues that the Justices' Letter culminated centuries of political and legal developments in England and America. In my view, he demonstrates beyond doubt that the demise of advisory opinions in Britain chiefly reflected political rather than constitutional factors, but falls short in establishing a parallel evolution in the United States.

A. THE RISE AND FALL OF ADVISORY OPINIONS IN ENGLAND

Professor Jay's opening chapter, which traces the history of the judicial advisory role in England, fills a major gap in the literature. Although scholars have routinely noted that Chief Justice Mansfield delivered the last formal advisory opinion to the executive in 1760,7 they have never satisfactorily explained why this practice died out.