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 tries to blunt this point by emphasizing that Article II does not prohibit the President from requesting (as opposed to demanding) legal advice from judges. Even assuming this distinction is valid,75 however, the underlying problem of rendering advisory opinions in public remains. Finally, I concur with Professor Jay that the Constitution gives judges discretion to perform other nonjudicial official services voluntarily, as long as these activities do not conflict with their primary function of impartial, binding adjudication. For instance, Chief Justice Jay served as an inspector of mint coins and as a commissioner of the sinking fund designed to retire the public debt, and other federal judges found facts in considering petitions for naturalization, claims of customs violations, and contested elections.76 Again, however, such actions do not bear on the specific issue of written, public advisory opinions.

In short, I find Professor Jay's reading of the Justices' Letter and the relevant drafting history to be strained. Conversely, I think the Court's textual exegesis, when read against the background of the Constitution's radical theoretical changes and basic interpretive principles, convincingly explains the refusal to issue advisory opinions. The remaining question is whether the Justices' Letter, despite its seeming plausibility, actually masked political motives.

C. PROFESSOR JAY'S POLITICAL EXPLANATION OF THE JUSTICES LETTER

Although other scholars have discussed the political backdrop of the Justices' Letter,77 none has come close to examining it as exhaustively as Professor Jay. Not surprisingly, his account of these political circumstances is richly textured and highly original.

1. The Justices' Use of the Letter to Avoid Public Controversy While Promoting Federalist Foreign Policy Goals

According to Professor Jay, the Federalist Justices shrewdly used the Letter to ameliorate a serious crisis in 1793 that threatened America's republican government-namely, our position in the war between France and England.78 Because Washington did not want to give the European powers cause for a war that America could not survive, he deemed compliance with treaties and the law of nations indispensable.79

Problems arose because the Constitution did not clearly allocate governmental responsibility over foreign relations, including such crucial issues as declarations of neutrality and treaty interpretation.so Treasury Secretary Hamilton championed executive control in this area, consistent with the Federalist gospel that the Constitution required a strong, unitary executive branch composed of the social elite.sl He also sought to enhance America's traditional commercial, cultural, and political ties with England.82 Hamilton's longtime New York ally John Jay shared these views, which had been confirmed by his vast diplomatic experience.83

Hamilton's bitter foe, Secretary of State Jefferson, believed Hamilton and Jay were conspiring to subvert republican government and establish an Englishstyle monarchy.84 Jefferson vigorously supported the French revolutionary republicans and argued that America had a moral duty to honor its 1778 treaty with France.85 This democratic orientation led him to assert Congress's primacy over all policymaking, including foreign affairs.86 Jefferson's longtime colleague James Madison, who led the early Congress and served as a liaison with the Administration, held the same constitutional philosophy.87