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Every student of the history of the federal judiciary knows that federal courts do not give advisory opinions; rather, they are limited to deciding concrete "cases" and "controversies" under Article III of the Constitution. The leading precedent cited for this is the refusal in 1793 of the Supreme Court to comply with the Washington administration's request for advice about the proper interpretation of treaties regarding US relations with Britain and France during the French Revolutionary Wars (when the US was trying to maintain neutrality). The Court stated "The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially 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, seems to have been purposely as well as expressly limited to executive Departments."
http://courses.missouristate.edu/ftmiller/letteradvisoryopin.htm

What if the Court had instead decided to give the advisory opinion sought? That there was no clear constitutional obstacle to it doing so has been argued by Stewart Jay, in *Most Humble Servants: The Advisory Role of Early Judges* (New Haven: Yale University Press 1997). (See http://web.archive.org/web/20000925...cooperative.org/journals/ahr/104.3/br_39.html for a summary.) Stewart Jay argues that there was considerable English, colonial, and post-independence precedent for an "extrajudicial" role for courts, and that Washington's request was not seen as unusual or raising constitutional problems; if it had been, given the state of 1790's politics, there would have been strong protests--which there were not. Secretary of State Jefferson, who was to emerge as a critic of Federalist policies, not only did not object to the request but was the one who actually corresponded to the Supreme Court justices and sent them the questions. Nor was there any uproar from Republicans in Congress.

According to Stewart Jay, historians have too readily accepted the justices' own explanation for why they were not complying with the request. In exploring what he regards as the real reasons, he looks at newspaper discussions over who should interpret treaties. Should lawyers and judges decide or the country itself through the president and representatives in Congress? Many Federalists, including John Jay and the other Supreme Court justices, believed that, especially in foreign affairs, the Federalist agenda could best be carried out by a strong executive, and the executive might be weakened if it relied on judicial opinions.

Another reason for the court's action: The Supreme Court justices had a serious grievance--their circuit riding duties. They hoped Congress would end the practice by establishing separate appeals court judges. The justices did not want to make enemies in Congress, which could have happened if, given the debate on foreign affairs issues, they had given advice on how to interpret treaties.

Stewart Jay concludes that had "the country had been less divided over the [neutrality] conflict, if circuit riding had never been instituted, and if Genêt had acted with more judgment...it is conceivable that the Justices would have decided to play the historically acceptable role of formal advisers to the executive." (pp. 169-70) The reviewer at https://web.archive.org/web/20100304230725/http://jurist.law.pitt.edu/lawbooks/revoct98.htm#wheeler concedes that this might be true, but thinks that "Even had the justices acceded to a perfunctory request in a placid environment, it is likely that later justices would have declined a mine-laden request during, for example, the slavery crisis, or acceded to it in an extra-judicial Dred Scott opinion never to be replicated." I am not so sure about this. If a fairly long tradition had developed of issuing advisory opinions, most of them non- controversial, it may be that the power to issue such opinions would eventually be taken for granted, and that one day the court would think itself free to decide a more controversial issue in an advisory opinion. Would the outrage caused by such an opinion (especially if it were about slavery) put an end to the tradition of issuing advisory opinions? Not necessarily. Most people still might not regard advisory opinions per se as illegitimate; rather, that particular opinion would be attacked. (Just as even bitter critics of *Dred Scott* in OTL often conceded the legitimacy
of judicial review *in general* but not that particular wicked pro-Slave Power opinion. And judicial review, after all, is not *explicitly* authorized by the Constitution any more than advisory opinions are.)

I therefore don't think it is inconceivable that a tradition of advisory opinions could have been established (or confirmed) in 1793 that would last until this day. And there would really be nothing so unusual about this. After all, European constitutional courts often give what Americans would consider advisory opinions. (Also, as Jonathan Edelstein pointed out at http://groups.google.com/group/soc.history.what-if/msg/9b7087489a01bbb5 several state constitutions expressly authorize their state supreme courts toissue advisory opinions.)
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