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ArtIII.S2.C1.4.1 Overview of Advisory Opinions

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

An advisory opinion is a non-binding interpretation of the law by a court,1 essentially the court providing advice on an abstract or hypothetical legal question. The Supreme Court has defined an “advisory opinion” as an “advance expression[ ] of legal judgment upon issues” that are not before a court in the form of litigation involving concrete claims by adverse litigants.2 The Court has long held that the language in Article III authorizing federal court jurisdiction over certain “Cases” and “Controversies” prohibits federal courts from issuing advisory opinions.3 The Court has explained that cases seeking advisory opinions are not justiciable, meaning that the federal courts lack jurisdiction to decide such cases.4

The Supreme Court has recognized two primary reasons for the limitation on advisory opinions. First, the Court has explained that the “implicit policies in Article III” and separation of powers principles confine federal courts to assessing the validity of actions by the other branches of government only in the context of a case or controversy.5 Second, the advisory opinion limitation promotes the prudential consideration that federal courts should decide legal questions in the context of an active, adversarial dispute. The Supreme Court has concluded that courts operate best when confronted with disputes that involve “a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests.” 6

The ban on advisory opinions has been recognized as being at the “core of Article III,” and one commentator has noted that “other justiciability doctrines exist largely to ensure that federal courts will not issue advisory opinions.” 7 Despite the importance of the rule against advisory opinions, the Supreme Court has at times lacked precision in explaining when a legal opinion becomes “advisory” in nature.8 In particular, cases from the 1920s and 1930s grappled with the question of whether the prohibition on advisory opinions also banned federal courts from issuing declaratory judgments—binding decisions that establish the legal rights of the parties without awarding other relief.9 The following essays provide an overview of the prohibition against advisory opinions,10 then discuss the relationship between advisory opinions and declaratory judgments.11

Advisory Opinion, Black’s Law Dictionary (11th ed. 2019). back
United States v. Fruehauf, 365 U.S. 146, 157 (1961). back
E.g., Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113–14 (1948) ( “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.” ) (citing Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792); United States v. Ferreira, 13 How. 40 (1852); Gordon v. United States, 117 U.S 697; In re Sanborn, 148 U.S. 222; ICC v. Brimson, 154 U.S. 447; La Abra Silver Mining Co. v. United States, 175 U.S. 423; Muskrat v. United States, 219 U.S. 346 (1911); United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386)). back
See, e.g., Muskrat v. United States, 219 U.S. 346, 361–63 (1911). For discussion of other constitutional requirements related to justiciability, see generally Justiciability . back
Flast v. Cohen, 392 U.S. 83, 96 (1968). See also Muskrat v. United States, 219 U.S. 346, 357 (1911) ( “[T]he right to declare an act of Congress unconstitutional [can] only be exercised when a proper case between opposing parties was submitted for judicial determination . . . there [is] no general veto power in the court upon the legislation of Congress.” ) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–80 (1803)); Osborn v. Bank of United States, 22 U.S. 738, 819 (1824) ( “[The Judicial Power] is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law.” ). back
Flast, 392 U.S. at 96–97 (1968) (quoting United States v. Fruehauf, 365 U.S. 146, 157 (1961)). See also Golden v. Zwickler, 394 U.S. 103, 108 (1969) ( “[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. . . . '[C]oncrete legal issues, presented in actual cases, not abstractions,’ are requisite.” ). back
Erwin Chemerinsky, Federal Jurisdiction § 2.2 (6th ed. 2012). See also California v. Texas, 141 S. Ct. 2104, 2116 (2021) ( “To find standing here to attack an unenforceable statutory provision would allow a federal court to issue what would amount to an advisory opinion without the possibility of any judicial relief.” (internal quotes and citation omitted)); Carney v. Adams, 141 S. Ct. 493, 498 (2020). back
Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 648 (1992) (arguing that the Supreme Court has been “extremely sloppy” in the use of the phrase “advisory opinions” ). back
See ArtIII.S2.C1.4.3 Advisory Opinions and Declaratory Judgments. back
See ArtIII.S2.C1.4.2 Advisory Opinion Doctrine. back
See ArtIII.S2.C1.4.3 Advisory Opinions and Declaratory Judgments. back