CRS Annotated Constitution

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Advisory Opinion.—In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of[p.672]the wars of the French Revolution.414 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: “These 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 extra–judicially 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, seem to have been purposely as well as expressly united to the Executive departments.”415 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct when he termed the policy a “firm and unvarying practice. . . .”416 The Justices in response to a letter calling for suggestions on improvements in the operation of the courts drafted a letter suggesting that circuit duty for the Justices was unconstitutional, but they apparently never sent it;417 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation;418 and Chief Justice Hughes in a letter to Senator Wheeler on President Roosevelt’s Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions.419 Other Justices have individually served as advisers and confidants of Presidents in one degree or another.420

Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as a logical application of the case and controversy doctrine. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere[p.673]recommendation to the President for his final action: “To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.”421 The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,422 or where the judgment of the Court was subject to later review or action by the executive or legislative branches of Government,423 or where the issues involved were abstract or contingent.424

Declaratory Judgments.—Rigid emphasis upon such elements of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure.425 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s,426 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934.427 Quickly tested, the Act was unanimously sustained.428 “The principle involved in this form of procedure,” the House Report said, “is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts.”429 Said the Senate Report: “The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclu[p.674]sively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice.”430

The 1934 Act provided that “[i]n cases of actual controversy” federal courts could “declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed. . . .”431 Upholding the Act, the Court said: “The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word ‘actual’ is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish.”432 Finding that the issue in the case presented a definite and concrete controversy, the Court held that a declaration should have been issued.433

It has insistently been maintained by the Court that “the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit.”434 As Justice Douglas has written: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”435 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction.436


Utilization of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending into all areas of civil litigation, except taxes,437 is common. The Court has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure.438 In part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like.439 Nonetheless, even at such times, several noteworthy constitutional decisions were rendered in declaratory judgment actions.440

As part of the 1960s hospitality to greater access to courts, the Court exhibited a greater hospitality to declaratory judgments in constitutional litigation, especially cases involving civil liberties issues.441 The doctrinal underpinnings of this hospitality were sketched out by Justice Brennan in his opinion for the Court in Zwickler v. Koota,442 in which the relevance to declaratory judgments of the Dombrowski v. Pfister443 line of cases involving federal injunctive relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of “federal question” jurisdiction in the federal courts by Congress following the Civil War, as well as the enactment of more specific civil rights jurisdictional statutes, “imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.”444


Escape from that duty might be found only in “narrow circumstances,” such as an appropriate application of the abstention doctrine, which was not proper where a statute affecting civil liberties was so broad as to reach protected activities as well as unprotected activities. Second, the judicially–developed doctrine that a litigant must show “special circumstances” to justify the issuance of a federal injunction against the enforcement of state criminal laws is not applicable to requests for federal declaratory relief: “a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.”445 This language was qualified subsequently, so that declaratory and injunctive relief were equated in cases in which a criminal prosecution is pending in state court at the time the federal action is filed446 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court,447 and federal courts were instructed not to issue declaratory judgments in the absence of the factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have to meet the stricter requirements justifying the issuance of an injunction.448


414 1 C. Warren, op. cit., n. 18, 108–111. The full text of the exchange appears in 3 Correspondence and Public Papers of John Jay, H. Johnston ed. (New York: 1893), 486–489.
415 Id., 488.
416 Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113 (1948).
417 See supra, p.599 n.21.
418 1 C. Warren, op. cit., n. 18, 595–597.
419 Hearings Before the Senate Judiciary Committee on S. 1392, Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 491. See also Chief Justice Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied on the salaries of federal judges violated the Constitution. S. Tyler, Memoirs of Roger B. Taney (Baltimore: 1876), 432–435.
420 E.g., Acheson, Removing the Shadow Cast on the Courts, 55B.A.J.919 (1969); Jaffe, Professors and Judges as Advisors to Government: Reflections on the Roosevelt–Frankfurter Relationship, 83 L. Rev.366 (1969). The issue has lately earned the attention of the Supreme Court, Mistretta v. United States, 488 U.S. 361, 397–408 (1989) (citing examples and detailed secondary sources), when it upheld the congressionally–authorized service of federal judges on the Sentencing Commission.
421 Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 113–114 (1948).
422 Muskrat v. United States, 219 U.S. 346 (1911).
423 United States v. Ferreira, 13 How. (54 U.S.) 40 (1852).
424 United Public Workers v. Mitchell, 330 U.S. 75 (1947).
425 Cf. Willing v. Chicago Auditorium Assn., 277 U.S. 274 (1928).
426 Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963).
427 48 Stat. 955 , as amended, 28 U.S.C. §§ 2201 –2202.
428 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
429 H. Rept. No. 1264, 73d Congress, 2d sess. (1934), 2.
430 S. Rept. No. 1005, 73d Congress, 2d sess. (1934), 2.
431 48 Stat. 955 . The language remains quite similar. 28 U.S.C. Sec. 2201 .
432 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–240 (1937),
433 Id., 242–244.
434 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).
435 Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).
436 Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public Service Comm. v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962).

Supplement: [P. 674, add to n.436:]

See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995) .

437 An exception “with respect to Federal taxes” was added in 1935. 49 Stat. 1027 . The Tax Injunction Act of 1937, 50 Stat. 738 , U.S.C. Sec. 1341, prohibited federal injunctive relief directed at state taxes but said nothing about declaratory relief. It was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393 (1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100 (1981).
438 E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond & Share, Co. v. SEC, 303 U.S. 419 (1938); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Eccles v. Peoples Bank, 333 U.S. 426 (1948); Rescue Army v. Municipal Court, 331 U.S. 549, 572–573 (1947).
439 United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367 U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm. v. Wycoff, 344 U.S. 237 (1952).
440 E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 307 U.S. 325 (1939); Ashwander v. TVA, 297 U.S. 288 (1936); Evers v. Dwyer, 358 U.S. 202 (1958).
441 E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Turner v. City of Memphis, 369 U.S. 350 (1962); Powell v. McCormack, 395 U.S. 486 (1969). But see Golden v. Zwickler, 394 U.S. 103 (1969).
442 389 U.S. 241 (1967).
443 380 U.S. 479 (1965).
444 Zwickler v. Koota, 389 U.S. 241, 248 (1967).
445 Zwickler v. Koota, 389 U.S. 241, 254 (1967).
446 Samuels v. Mackell, 401 U.S. 66 (1971). The case and its companion, Younger v. Harris, 401 U.S. 37 (1971), substantially undercut much of the Dombrowski language and much of Zwickler was downgraded.
447 Hicks v. Miranda, 422 U.S. 332, 349 (1975).
448 Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered by Steffel, the federal court may issue preliminary or permanent injunctions to protect its judgments, without satisfying the Younger tests. Doran v. Salem Inn, 422 U.S. 922, 930–931 (1975); Wooley v. Maynard, 430 U.S. 705, 712 (1977).
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