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

Similarly, William Casto has contended that the Constitution created the bare bones of the federal judicial system, with details to be fleshed out by the political and judicial process."8 As to advisory opinions, he asserts that the Justices eschewed theory in favor of a practical, flexible, ad hoc balancing of factors.119 Although Professor Casto acknowledges the constitutional basis of the Letter,120 he places it in the framework of the events following the Neutrality Proclamation, such as the Genet affair.121

Finally, all the foregoing historians have built upon the work of Russell Wheeler, although he tempers his political analysis with the conclusion that the Letter reflected genuine separation-of-powers concerns.122 In short, most recent legal histories of the Jay Court have explained its decisions largely in political terms.

This scholarship follows more general intellectual currents. Most significantly, William Gwyn has long argued that the Constitution's Framers and early implementers cared little about abstract political theory-indeed, that the central maxim of separation of powers (and the meaning of "legislative," "executive," and "judicial" power) was so indeterminate that it could accommodate a vast range of institutional arrangements.l23 Thus, he maintains that government decisions during the 1790s reflected political pragmatism and a desire for efficiency.l24 Gerhard Casper and others have applied Gwyn's framework to various legal problems that faced the fledgling Republic.l25

B. THE IMPACT OF IDEAS ON EARLY JUDICIAL OPINIONS

I do not wish to minimize, much less denigrate, these scholars' contributions. Indeed, I agree with several of their conclusions. Most importantly, it is clear that the Constitution was drafted pragmatically to leave federal government officials-including courts-flexibility in defining the contours of separation of powers in light of changing political circumstances.l26 Specifically, the Constitution does not delineate the proper scope of many extrajudicial activities (such as nonadjudicatory factfinding), and the Court, in developing workable guidelines, sought to protect its institutional independence while allowing individual judges more leeway.127

Nevertheless, I reject the notion that the Framers roughly sketched a government and left virtually all the details up for grabs. Indeed, doing so would have largely defeated the entire Constitution-making project. Most pertinently, the drafters forbade certain extrajudicial practices-including advisory opinions128 and the issuance of final judgments that could be revised by the political branches. 129

More generally, the Founders' pragmatism should not obscure their deep commitment to ideas, as expressed in their essays, speeches, letters, and official documents.'30 To put it more precisely, the Federalists' desire to solve the pervasive practical problems of the post-Revolutionary, legislative-dominated governments led to profound intellectual changes.131 Most radical was the notion of popular sovereignty, which in turn made possible a novel conception of federalism.l32 Furthermore, America's disastrous governments in the 1780s reinforced the wisdom of several English political concepts-a bicameral legislature, a strong unitary executive, and independent courts-all of which were given distinctively American twists.l33 Indeed, the Federalists believed that such mechanisms inexorably produced effective governance, consistent with their Enlightenment view of "political science": Sound governments, no less than physical laws of nature, rested on certain immutable principles.4