Concept
Advisory Opinions Elsewhere
Case or Controversy and Advisory Opinions
Advisory Opinions Elsewhere
The sections so far have treated the ban on advisory opinions as a rule about requests: a President who writes to the Justices, a Congress that asks for comment on a bill, a litigant who stages a friendly suit to obtain an answer. The same principle applies in settings where no one has asked a federal court for advice and the proceeding looks like ordinary litigation. What matters in each setting is whether a ruling would settle anything between the parties, since the modern explanation of the ban is that an opinion given outside a case or controversy exceeds the judicial power Article III confers.1 A federal court asked to decide a question whose answer would leave the outcome unchanged stands where it would stand if asked for a ruling in a vacuum, whatever the pleadings call the exercise. That extension also marks the ban's limit, because the text that creates the rule reaches only the courts Article III governs.
The first extension concerns the Supreme Court's own docket. When a state court rests its judgment on state law that is adequate to support the result and independent of any federal question, the Supreme Court will not review the judgment, even if the state court also decided a federal question along the way. The usual explanation is the advisory-opinion ban. The Court's power over state judgments is a power to correct wrong decisions of federal law, and if the state court would enter the same judgment after the Court corrected its federal views, the Court's review would produce an opinion that changes nothing.2 A federal ruling given in those circumstances would resolve a concrete controversy only in appearance, because the state-law ground would keep the result in place.
The second extension marks where the ban stops. The rule is tied to the cases and controversies that Article III lists, so it constrains courts exercising the judicial power of the United States and says nothing about tribunals that rest on other foundations. State high courts are the plainest illustration, since ten of them still give advisory opinions, as does the Canadian Supreme Court.3 Massachusetts is the familiar example among the states, which means the federal ban is a constitutional limit on one judiciary and does not describe adjudication everywhere.4 The next subsection takes up review of state-court judgments under Adequate and Independent State Grounds, and the one after it asks which courts the ban leaves free.
Adequate and Independent State Grounds
The Supreme Court's authority over state courts reaches only the federal part of a state judgment. Under 28 U.S.C. § 1257 its review of state-court decisions covers cases involving federal-law questions, and the state supreme courts are the final word on what their own law means.5 A single state judgment can therefore carry two layers of reasoning, a federal ruling the Court may examine and a state-law ruling it must accept as given. When the state-law layer alone is enough to support the judgment, the Court will not review the case, even if the state court also decided a federal question and even if that federal ruling was wrong.6 The doctrine takes its name from the two qualities the state ground must have, adequacy and independence, and this section defines each before turning to the rule for opinions that do not say which layer they rest on.
The reason was given by Justice Jackson in Herb v. Pitcairn: the Court's power over state judgments is a power to correct them to the extent that they wrongly decide federal rights, and “our power is to correct wrong judgments, not to revise opinions.”7 A judgment is wrong in the relevant sense only if fixing the federal error would alter what happens to the parties. If the state court would enter the same judgment after the Court corrected its view of federal law, the Court's ruling would change no one's rights, and a ruling that changes nothing is the defining mark of an advisory opinion. The same idea governs appellate standing generally, since a party seeking relief from a federal appellate court must show that a favorable ruling would redress its injury.8 This is also why the question comes first in the analysis: the Court has to decide whether an adequate and independent state ground exists before it reaches the federal question, because a ruling on the federal question made first would already be the advisory opinion the doctrine forbids.9
A cited illustration shows the doctrine at work. A state court may hold a state law invalid under the state constitution and add, as an alternative holding, that the law also violates the United States Constitution. No federal question remains worth reviewing: if the Supreme Court agreed with the federal holding it would affirm, and if it disagreed it would still have to affirm, because it cannot reverse a judgment that rests on the state constitution.10 The result is the same when the state court could have reached the federal ground but chose to decide only on state law. What controls is what the state court actually did. The mere possibility that a state court might have rested on state law does not bar review when it clearly rested its decision solely on the Federal Constitution.11
The two words in the doctrine's name do separate work. An adequate state ground is one that fully sustains the result and does not itself violate any provision of the Constitution or federal law.12 An independent state ground is one that stands apart from the federal ground and is not entwined with it, either explicitly or implicitly.13 Adequacy matters because a state ground that covered only part of the result would leave open the possibility that reversing on the federal question could change the outcome. Independence matters because a state court may decide a matter of state law the way it does only because it understood federal constitutional considerations to compel that reading, and in that situation the state-law label rests on a federal foundation.14 Correcting the federal view could then change how the state court reads its own law, so the judgment would not be insulated. The working test combines both words: ask whether the Court's reversal on the federal ground could affect the judgment below.15 If the same judgment would stand, review is barred, and if reversal would change it, review proceeds.
The state ground may be substantive, meaning state law supplies the rule of decision, or procedural, meaning a state rule such as a contemporaneous-objection requirement bars the federal claim. A state procedural ground is usually adequate if it does not violate the Constitution, advances a legitimate state interest, and is applied consistently, and the Court upholds a procedural forfeiture unless the state court seized on a pretext to avoid the federal claim.16 A default can be so trivial or contrived as to be inadequate, as when a complaint pleading a federal claim is dismissed because it contained two misspelled words.17 The Court has likewise found a ground inadequate when it was so ad hoc or unreasonable as to suggest a deliberate attempt to avoid Supreme Court review, as in NAACP v. Alabama ex rel. Patterson.18 The limit follows from the incentive it removes. A state court that wanted to shield a ruling on federal rights could otherwise attach some technical default to the claim and put the judgment beyond review, so the adequacy requirement keeps the state rule genuine. Procedural default has its own detailed doctrine, which this chapter does not develop.
The harder situation is an opinion that blends state and federal law without saying which one carries the result. For years the Court handled such opinions case by case. It studied the state law itself, which required it to interpret statutes it did not know and that the parties had often not briefed. It vacated and continued the case so the state court could clarify, which caused delay and placed on state courts the burden of showing whether the Court had jurisdiction. It dismissed outright, which left federal law unreviewed and non-uniform when the opinion rested primarily on federal grounds.19 In Michigan v. Long the Court replaced that ad hoc approach with one rule. When a state-court decision fairly appears to rest primarily on federal law, or to be interwoven with it, and the adequacy and independence of any possible state ground are not clear from the face of the opinion, the Court accepts that the state court decided as it did because it believed federal law required it, and the Court takes jurisdiction.20
The facts of Long show how little it takes for the assumption to apply. The Michigan Supreme Court held a search of a vehicle's passenger compartment unconstitutional. Its opinion cited the state constitution twice but otherwise relied exclusively on its understanding of Terry v. Ohio and other federal cases, cited no state case, and explained its holding by saying that the lower court had misapplied the principles of Terry.21 The Court found those two references to the state constitution did not show grounds independent of federal law, and it held that even if the Michigan Constitution independently protected the same rights, the decision fairly appeared to rest primarily on federal law.22 The rule does not authorize advisory opinions, because the assumption is itself a judgment about jurisdiction, made only when the opinion does not make clear that an independent ground exists and it fairly appears that the state court rested primarily on federal law.23
A state court that wants to insulate its ruling must say so plainly. If it uses federal precedents only as it would use the precedents of any other jurisdiction, it need only state in its judgment or opinion that the federal cases serve as guidance and do not themselves compel the result, and if it states clearly and expressly that the decision is alternatively based on bona fide separate, adequate, and independent grounds, the Court will not review it.24 Placing the burden on the state court makes sense because the court that wrote the opinion alone knows what it relied on, and a sentence of clarification costs it almost nothing. The rule serves two interests that pull in different directions. State judges remain free to develop state law without federal interference, and ambiguous opinions cannot stand as barriers to a federal ruling on the validity of state action under the Federal Constitution.25
The Article III explanation is the standard one, but the rule's foundation is described in more than one way. The Court has said on occasion that it need not decide whether the rule is constitutionally based, because a statutory basis is enough, and a federal ruling given despite an alternative state ground has been compared to a moot ruling more than to an advisory one, since a concrete controversy exists.26 The Court has also been uncertain whether the doctrine is a prudential limit on its exercise of jurisdiction or a firm restriction. Early cases seem to treat it as a way of controlling the docket, while later ones treat it as required by the duty to avoid advisory opinions.27 Long itself describes the principle as based “in part” on the limitations of the Court's own jurisdiction.28 The doctrine also appears among Justice Brandeis's rules of judicial restraint, which the closing section of this chapter takes up.29 The label does not change the working test, and an exam answer can state the advisory-opinion rationale and apply the test.
On an exam stem, the two common errors run in opposite directions. Some students treat the presence of a federal question as enough to open the door, forgetting that the Court reviews judgments and not opinions. Others treat a passing reference to the state constitution as enough to close it, even though the state court in Long cited its constitution and was reviewed anyway because the opinion rested primarily on federal precedents.31 The question is what the opinion says about its own foundation, and a state court that wants to be left alone has the means to say it.
Courts Outside Article III
The ban on advisory opinions comes from the case-or-controversy limit in Article III, so it reaches the courts that Article III governs and no others. Article III extends the judicial power only to listed cases and controversies, and the Court has made clear that Article III courts cannot hear other matters.34 A court that draws its authority from a different source sits outside the limit, and the ban follows the limit. When a fact pattern has someone seeking a court's advice, the first question is therefore which court is being asked and which constitution created it. The answer sorts the problem into three categories, taken in turn here: Article III courts, Article I tribunals, and state courts.
The federal courts that Article III creates cannot be required to give advice. The limit is constitutional, and a statute cannot enlarge the judicial power the Constitution confers.35 Muskrat shows the consequence. Congress authorized named plaintiffs to sue in the Court of Claims, with a right of appeal to the Supreme Court, to test the validity of earlier statutes, and the Supreme Court declined to decide the question on those terms.36 The same limit keeps Article III judges out of the political branches' work, because drawing them in would produce the meddling in coordinate branches that the case-or-controversy requirement exists to prevent.37
Article I tribunals stand differently. Congress creates them under its Article I powers, and they are inferior to the Supreme Court but neither limited nor protected by Article III.38 Their judges have no constitutionally guaranteed life tenure and no protection against salary reduction, and the tribunals resemble administrative agencies more than courts. They are not governed by the case-or-controversy limitation, so they may render advisory opinions.39
The difference follows from what the ban protects. The Court's rejection of an advisory role grew out of the need to preserve judicial independence and to avoid extra-judicial chores.40 Those concerns presuppose a judiciary whose tenure and pay are guaranteed and whose independence the political branches could erode by drawing its judges into advising them. An Article I judge holds no such guarantees and performs work close to agency adjudication, so a request for that judge's advice entangles no insulated branch with the political ones. Because Article III neither limits nor protects these tribunals, nothing in it requires them to wait for a live dispute before speaking.
The Court of Claims illustrates the point. At the time of Muskrat it was an Article I court, and until Congress changed the statute and the Supreme Court held that it had become an Article III court, it routinely rendered advisory opinions to Congress under a reference jurisdiction.41 That advisory function belonged to the period before the change in status, and it shows how the same legislature could seek advice from one court that was free to give it and could not seek it from another. The freedom has limits, however. Congress must have an appropriate reason to create an Article I court and may not hand such a court all Article III business, or the idea of a court limited and protected by Article III would mean nothing.42 Today the category includes territorial courts, certain courts in the District of Columbia, courts-martial, and tribunals that adjudicate public rights, and this chapter does not develop them further.43
State courts answer to their own constitutions, and several of those constitutions authorize advice. The Massachusetts Constitution gives each branch of the legislature, as well as the governor or council, “authority to require the opinions of the justices of the supreme judicial court upon important questions [and] solemn occasions.”44 The Michigan Constitution lets either house or the governor request the supreme court's opinion on the constitutionality of legislation after it is enacted but before its effective date.45 These provisions are used in practice: from 1990 to 2004, state supreme courts issued 143 responses to requests for advisory opinions.46 Ten state high courts in all give advice, so the federal ban is one constitution's answer to a question that other jurisdictions answer differently.47 A state that prizes the speed of advice and its power to expose drafting errors before a bill takes effect may choose it, while the federal system prefers the better information that a concrete dispute supplies.48
A state court's freedom to give advice stops at the federal boundary, because the Supreme Court's own jurisdiction is still cast in Article III terms. A state court cannot transform an abstract question into a case the Supreme Court may review simply by ruling on its merits.49 In Doremus v. Board of Education a taxpayer challenged a state statute requiring Bible reading in public schools and lacked the financial interest that a federal case would require. The Supreme Court dismissed the appeal from the state's highest court, reasoning that “because our own jurisdiction is cast in terms of ‘case or controversy’” it could not accept as a basis for review any procedure that did not constitute one.50 The federal and state systems also differ on what follows. A federal case that becomes moot on appeal is sent back with instructions to dismiss, but the Supreme Court has no supervisory power over state courts, so it dismisses the appeal and does not require the state court to vacate its judgment.51
The Supreme Court will review a state judgment that actually injures a party. If the judgment causes direct, specific, and concrete injury to the party petitioning for review, and the other requisites of a case or controversy are met, the Court treats the case as live.52 The state judgment itself then supplies the injury that a hypothetical or premature question lacks, even when the party who brought the case would have lacked standing in federal court.53
On an exam stem, the pivotal inquiry is which court is acting and what constitutional source it sits under. A request for advice directed to a district court or the Supreme Court fails, and the same request directed to an Article I tribunal or to a state court that its constitution authorizes to answer can succeed. Students lose this issue when they apply the ban as a rule about every court instead of a limit on the courts Article III governs, and they lose it again when they assume that a state court's advisory ruling on a federal question hands the Supreme Court a case.