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

Professor Jay's central postulate concerning separation of powers is that the Constitution "provided only rough outlines" of the structure of government and left many details of its actual operation to be worked out through a combination of customary arrangements and congressional action-for example, the existence and organization of executive departments and lower federal courts.62 Thus, the Framers' failure to affirmatively sanction a particular practice (such as advisory opinions) does not necessarily indicate their intent to foreclose it; rather, when the drafters meant to forbid something, they did so explicitly.63

These premises enable Professor Jay to deny a solid constitutional basis for the ban on advisory opinions. He admits that the Framers, by extending "judicial power" to "Cases" and "Controversies" in Article III, intended only to authorize federal courts to engage in binding adjudication, not to issue advisory opinions.64 Nonetheless, he suggests that the delegates were focused on ensuring federal judges' independence and defining their jurisdiction, and thus may not have bothered with other details (like advisory opinions) that they did not think were likely to affect the judiciary's autonomy or functioning.65

Similarly, Professor Jay concedes that Article II does not allow the President to require federal judges to give formal legal advice, but argues that it does not specifically prohibit him from requesting that such advice (or other assistance) be rendered voluntarily.66 Nor was the Convention's rejection of proposed judicial involvement in executive councils necessarily based on constitutional concerns, for the delegates eventually agreed to bar judges from simultaneously serving only in Congress, not in the executive branch.67

3. A Critical Analysis of Professor Jay's Reading of the Letter

Although Professor Jay's interpretations of Articles II and III are defensible, they depend heavily upon a premise of textual indeterminism that stands Federalist constitutional principles on their head. Contrary to the fundamental idea of a written Constitution that delegates limited power, Jay's reading hinges on the claim that the Constitution's failure to mention advisory opinions created no inference either way about the drafters' intent to foreclose them.68

In this regard, Professor Jay's argument that the Constitution is often silent because the Framers left certain details to the discretion of federal government officials69 would be dispositive if we were dealing with a matter that the Convention had deliberately punted (for example, Congress's power to mold the federal judiciary). But here the Framers considered the specific practice at issue-written advisory opinions directed by the President-and consciously assigned it not to judges, but to executive department heads.

Professor Jay, however, views the events at Philadelphia differently. For instance, he asserts that the objections to the Council of Revision merely show the delegates' reluctance to have judges take a public position on policy issues, not to foreclose private consultation with the political branches.70 I agree that (1) neither the Constitution's text nor its drafting history prevents judges from giving private advice, and (2) several individual Justices did so in the early period.7 The admittedly complex issues raised by such private counsel72 do not seem relevant here, however, because the Washington Administration wanted the Court to give "the public . . . advice on these questions."73 And abundant evidence suggests that the Federalists thought public advisory opinions almost always threatened to compromise the Court's independence and its impartial exercise of judicial power. For example, in a 1790 letter to President Washington, John Jay declared that judges were reluctant "to relinquish sentiments publicly, though perhaps, too hastily given" because of the danger of "partiality"-including the citizenry's perception of judges' "improper adherence" to prior public opinions.74