The Advisory Opinion and the United States Supreme Court
The Ad visor y Opinion and the United States Supreme Court
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Recommended Citation Th e Advisory Opinion and the United States Supreme Court, 5 Fordham L. Rev. 94 (1936). Available at: http://ir.lawnet.fordham.edu/flr/vol5/iss1/7
for antecedent debts seems well calculated to encourage dealings on credit.
Further, the new policy mirrors a general trend in the law from caveat emptor
to caveat dominus.93 The problem involves a delicate balance of security in title
and security of purchase. Modern views inclined towards the maintenance
of unhampered commercial intercourse favor the latter.
THE ADVISORY OPINION AND THE UNITED STATES SUPREME CoURT.-Perhaps
no other American institution has been subjected to more bitter and incisive
criticism,' and e converso, been defended with a greater abundance of encomiums
and hosannas 2 than has the Supreme Court of the United States.
Notwithstanding this sharp contrast in opinion, partisans of all factions, whether of
the conservative or extremist varieties, appear to be reconciled on the
fundamental reality of the role of that historic tribunal in shaping mhch of our
present pattern and philosophy.3 Consequently, any proposal relating to the
discharge of that responsibility must, of necessity, touch upon the whole
mechanism of our system, and is therefore particularly worthy of examination.
Shortly after the decision in the highly celebrated and much debated Schechter
Case,4 a number of resolutions proposing an amendment to the Constitution
were introduced in the House of Representatives to enlarge the jurisdiction of
the Court so as to enable it to act in an advisory capacity. Seemingly moved
by the two year spectacle of insecurity and uncertainty which attended the life
of the N.I.R.A., and of the waste and confusion which resulted from its demise
at the hands of a unanimous bench, the proponents of these resolutions visioned
in this stratagem a means of avoiding repetition of that scene in the future
93. HUSTON, ENFORCEMENT OF DEcREs IN EQUITY (1915) 128; cf. Comment (1935>
4 FoPDAr L. Rxv. 295 (decline of caveat emptor in the sale of food).
1. RANsomE, OUR JUDICIAL OLIGARCHY (1912); ADAMS, THE THEORY OF SOCIAL
REvoLUTIONS (1913); BOUDIN, GOVERNMENT BY JUDICIARY (1932).
2. GUTHRIE, THE FOURTEENTH AMENDMENT (1898) 29; Wickersham, The Judicial
Function (1912) 60 U. oF PA. L. REv. 601; BECK, THE CONSTITUTION OF THE UNITED
STATES (1933) 231.
3. BEARD, AMERICAN GOVERNMENT AND POLITICS (1910) 314; 1 WARREN, Tnr SUPREME
COURT IN UNITED STATES HISTORY (2d ed. 1928) vii; 2 id. at 753; BECK, op. cit. supra
note 2; Lerner, Supreme Court and American Capitalism (1933) 42 YALE L. J. 668, 696;
CORWIN, TWILIGHT OF THE SUPREME COURT (1934) 182; LASKI, THE STATE IN THEORY AND
PRACTICE (1935) 156; Shephard, Democracy in Transition (1935) 29 AMER. POL. Smx. REV. 1.
4. A. L. A. Schechter Poultry Corp. v. United States, ,295 U. S. 495 (1935) (decided on
May 27, 1935; the entire code structure was to expire on the succeeding June 16; see 48
STAT. 195, 196, 15 U. S. C. A. § 701 (c) [Supp. 1934]). See Comment (1935) 4 FoRDuAPJ
L. REV. 457.
5. On June 17, 1935, Congressman Tolan introduced a bill in the House of
Representatives proposing an amendment to the Constitution whereby the "President or either House
of Congress, at any time may require from the Supreme Court an opinion upon the
constitutionality of any Act passed by Congress, and the Supreme Court shall render such
opinion in writing." H. J. REs. 317, 74th Cong., 1st Sess. (1935). On July 9, Representative
Maas offered an amendment declaring that no Act of Congress shall become a law unless
administration of the law.6 On October 6, 1935, the issue was committed to
the forum of public opinion when Governor Hoffman of New Jersey announced
his advocacy of an amendment embodying many of the suggestions of his
predecessors.7 It is not at all improbable that these events augur the beginning
of a new reform movement which is sure to be the subject of more intense
agitation at the second session of Congress and with the advent of the 1936
It is a commonplace of current constitutional doctrine that the rendition
of an advisory opinion is anathema to the Supreme Court.0 It is necessary
at the outset, therefore, to distinguish the general features of that vilified
procepresented by the President to the Supreme Court for its decision on the constitutionality
thereof and "it shall be the duty of the Supreme Court to render such decision within
sixty days." H. J. Ras. 344, 74th Cong., 1st Sess. (1935). A third version was embodied
in the proposal of Representative Hobbs which required the Supreme Court "to render
an advisory opinion upon the constitutionality of Acts of Congress whenever so requested
by the President, or by at least one third of each of the Houses of Congres," such requeft
to be considered a preferred case on the Court's calendar. H. J. Ras. 374, 74th Cong., 1st
6. See Remarks in the House, 79 Cong. Rec., July 9, 1935, at 11292. That there is no
little ferment in the Senate upon the subject is indicated by the proposal of Senator Norris
on June 17, requiring a two-thirds vote to validate judicial review of federal legislation
with the proviso that no judgment be rendered unless action is commenced within six
months after the enactment of the law. S. J. Rrs. 149, 74th Cong., 1st Sess. (1935).
Witness also the bill introduced by Senator La Follette on July 8, permitting any decision
of an inferior federal court upon the constitutionality of a federal statute to be taken
directly to the Supreme Court and advanced on its docket if the Attorney-General certifies
that the "national public interest" justifies such review. S. 3211, 74th Cong, 1st Ses3.
(1935). See U. S. Law Week, July 16, 1935, at 1038, pointing out that the La Follette
plan fails to assure expedition of such cases in their appellate stages and that the accelerating
features of the proposal depend entirely on the discretion of the Attorney-General. Cf.
the suggestion of James M. Beck, favoring the creation of a quasi-judicial commission of
eminent lawyers to advise the legislature on the validity of proposed laws. U. S. Law
Week, July 23, 1935, at 1059.
7. In an open letter to the Chairman of the National Republican Committee, Governor
Hoffman made the proposal that the party include in its platform an amendment to the
Constitution to the effect that "all laws enacted by the Congress and approved by the
President, or enacted by the Congress over the disapproval of the President, shall be
submitted to the Supreme Court of the United States for a decision as to their constitutionality
before they become effective." The reasons expressed in support of the proposal have a
somewhat narrower scope than those of the Congressmen in that the Governor,
movedby an antipathy to the policies of the Roosevelt administration, advances the amendment
purely as a means of preventing the infiltration of allegedly -ocialistic practices into the
present system. N. Y. Herald-Tribune, Oct. 7, 1935, at 16.
8. See editorial in N. Y. Herald-Tribune, Oct. 7, 1935, at 22 (unfavorable); id., Oct. 23,
1935, at 18 (letter of Hoffman in reply and editorial comment thereon); N. Y. Times,
Oct. 8, 1935, at 22 (unfavorable editorial); id., Oct. 12, 1935, at 16 (unfavorable letter);
id., Oct. 27, 1935, § 4, at 9 (unfavorable letter); id., Nov. 3, 1935, § 4, at 9 (favorable
letter); N. Y. L. J. Nov. 1, 1935, at 1614 (unfavorable editorial).
9. Liberty Warehouse Co. v. Grannis, 273 U. S. 70 (1927) is generally regarded as
authority for the Court's extreme sensitiveness to the assumption of duties even remotely
advisory. "The judgment is not merely advisory as in Liberty Warehouse Co. v.
Grannis... !' Fidelity Nat. Bank & Trust Co. v. Swope, 274 U. S. 123, 134 (1927).
dure from the conditioning elements of related types of proceedings. The advisory
opinion is an anticipatory opinion, given in advance of actual litigation, at the
behest of another organ of the government, relating to the validity of action
contemplated or already taken by such authority and is delivered by the court,
or by the judges ad seriatim.0' As a consequence of the unqualified disapproval
by the Court of any appeal suggesting the exercise of such a function, 11 the
term has developed a wider and different import. It has been used
indiscriminately 12 to describe nearly every type of proceeding denominated by the
Court as non-justiciable and not within the limits of its jurisdiction as
circumscribed by the Constitution. 13 In a broad sense, the advisory opinion, like
the declaratory judgment, is designed to increase the scope of preventive
justice in the American legal system, 14 to obviate to some degree the necessity
for social conflict inherent in the requirement that legal injuries shall precede
appeal to the courts. Its purpose is purely diagnostic and ameliorative, and
involves no coercive relief. 15 Unlike the declaratory judgment, it has no binding
force other than the persuasive character of its reasoning.' 0
10. 1 COOLEY, CONSTITrUTiONAL LITATIONS (8th ed. 1927) 99; 1 WiLLouonny, TuE
CoNST=TIIoNAL LAW OF THE UN=TED STATES (2d ed. 1929) 28; 3 id. at 1628.
11. See note 9, supra.
12. The Supreme Court in several since discredited dicta, has referred to the declaratory
judgment as if it constituted an advisory opinion and the confusion thus created postponed
for a considerable time the enactment of a federal declaratory judgment statute [48 STAT.
955, 28 U. S. C. A. § 400 (1934)]. See BORcHARD, DECLARATORY JUDOMENTS (1934) 50.
13. "The judicial power [of the United States] shall extend to all cases . . .
controversies. .. ." U. S. CONST. Art. III, § 2. (Italics supplied.) See notes 85-90, infra, Federal
jurisdiction must appear affirmatively on the record, or its existence will be challenged by
the Court on its own motion. Mansfield, C. & L. M. Ry. v. Swan, 111 U. S. 379 (1884).
14. Hudson, Advisory Opinions of National and International Courts (1924) 37 HAiMy,
L. REV. 970, 971-972; Clovis and Updegraff, Advisory Opinions (1928) 13 IowA L. REV.
188, 198. A provision of the Uniform Declaratory judgments Act permits the
enforceability and constitutionality of statutes to be attacked by declaratory action. Professor
Borchard has observed that construction and interpretation are a more common quest of
such statutory proceedings and that validity has been challenged for the most part only
in taxation cases. BORCHARD, DECLARATORY JuDGME.NTs (1934) 552, 560. The scope of
the federal act in this respect is at present being tested in the suit brought by the state of
Georgia asking for a declaratory judgment restraining the enforcement of the Bankhead
Cotton Control Act. See U. S. Law Week, Nov. 19, 1935, at 193. The federal act Is
specifically limited to cases of "actual controversy" between adverse litigants, which would
seem to be fixing the line of demarcation with sufficient clarity between the declaratory
judgment and the advisory opinion. Cf. Henrietta Mills v. Hoey, 12 F. Supp. 61 (S. D.
N. Y. 1935) (bill in district court seeking declaratory judgment that AAA. was
unconstitutional dismissed under amendment to federal Declaratory Judgment Act withdrawing
the remedy from controversies relative to federal taxation).
15. The declaratory judgment conclusively declares the preexisting rights of litigants but
prescribes no coercive measures for their enforcement. BORClARD, DECLARATORY JUDOMENTS
(1934) vii. That the award of process or execution to carry a judgment into effect Is not
indispensable to a proper exercise of the judicial function is well established. See Nashville,
Chattanooga and St. Louis Ry. Co. v. Wallace, 288 U. S. 249, 263 (1933).
16. Where not judicial precedent, the opinion is merely persuasive evidence of the
application of the law to the matters embraced in the question. In re Opinion of the
Justices, 214 Mass. 602, 102 N. E. 644 (1913). Naturally, if because of the excellence of
The advisory opinion in England owes its existence to the historical relation
of the English judges to the Crown and the House of Lords.' 7 The spectacular
Coke is known to have been hostile to the practice of consulting the judiciaryl&
and his attitude may fairly be described as typical of a majority of the bench
then and now.19 As early as 1760, it was announced that such extra-judicial
opinions would not be binding in later litigation.20 Attempts to extend the
practice of references to the High Court for advice have been frustrated by
the unfriendly attitude of the judges.21 In Canada, the practice of requiring
extra-judicial opinions at first encountered opposition, but it has won its way
and authority of considerable latitude has recently been conferred by statute
the opinion, great weight is accorded it in later litigation, that would seem to be not a
defect of the system but some ipdication of its efficacy as a form of preventive justice.
That an advisory opinion does constitute judicial precedent has been held in Colorado,
In re Senate Resolution Relating to Senate Bill No. 65, 9 Colo. 639, 21 Pac. 478 (1889);
and in Maine, Answer of the Justices, 70 Me. 570, 583 (1880). But see State v. Cleveland,
58 Mle. 564, 573 (1870) semble; Opinion of the Justices, 72 Ale. 542, 562 (1881) stble.
It is significant to note that the proposals referred to in notes S and 7, supra, are
addressed to laws already passed by Congress. An advisory opinion rendered under such
circumstances would no doubt be accorded the came force and effect as are the present
decisions of the Court. Nevertheless, in giving such opinions, the Court would clearly be
acting as the constitutional advisers of the other departments of the government. It would
be deciding questions of validity anterior to the operation of the statutes with a view to
notifying the government as to the propriety of contemplated action. For reasons set
forth infra, the present writer is in sympathy with this form of the advisory opinion in
the federal system. To deny the opinion the dignity of a decision in the unique niietr
of Congress, the Constitution and the Supreme Court would give it a dubious effectiveness
as a sedative and fail entirely of accomplishing the very objectives which give rise to it.
The alternative scheme whereby the opinion would not be obligatory upon the petitioners
and hence not binding on the Court, might appeal to those who, like Professor Llewellyn,
seek a procedure under which rulings on unconstitutionality may be subjected to periodic
reexamination. See Llewellyn, The Constitution as an Institution (1934) 34 CoL. L. REv.
1, 37. While the presumption of past infallibility should not be a conclusive one,
nevertheless, exposing it through the medium of an advisory opinion to constant challenge at
irregular intervals, would greatly complicate the status of the presumption in a given case
and only weaken that measure of certainty which it is the primary function of a legal
system to secure.
17. Since the English King was regarded as the source of all justice, the evolution of
the national courts from the curia regis in no way deprived the sovereign of his power,
when acting in his judicial capacity, to consult the judges. As a consequence, the Privy
Council, to which the monarch's power came to be delegated, likewise consulted the judges.
In 1833, Parliament created the present Judicial Committee of the Privy Council (3 & 4
Wm. IV, c. 41), and the duty was conferred upon that body of advising the Crown on
legal questions. Frankfurter, Advisory Opinions (1930) 1 E.acm. Soc. Scr. 475, 476. For a
more thorough description of the process, see Veeder, Advisory Opinions of the Judges of
England (1900) 13 HAnv. L. REv. 358; Wade, Consultation of the Judiciary by the"
Executive (1930) 46 L. Q. REy. 169.
18. 5 Hor.nswoRB, A HisToRY OF ENorasH LAW (1927) 428, n. 1, 438.
19. Id. at 351, 352.
20. Sackvllle's Case, 2 Eden 371, 28 Eng. Reprints 940 (Ch. 1760).
21. PAPRLA N=ARY DEBATFS, 5th Series, Vol. L'-, 755, 795, 914 (1928).
on the Governor-General and each house of Parliament in this regard.2 2
Australia has rejected the device as repugnant to its constitution which is
largely modeled on that of the United States.2 3 The constitutions of several
Latin-American countries, notably those of Colombia 24 and Panama, 25 provide
for judicial participation in the legislative process, and in particular for
references of legal questions to the courts. 26 The plastic nature of the advisory
opinion has proved itself unusually adaptable to the exigencies of international
disputes and has served on numerous occasions as an effective instrument of
arbitration in the Permanent Court of International Justice.2 7
The advisory opinion was formally introduced into the American
constitutional system by the Massachusetts Constitution of 1780.28 Before that time
there had existed in New York, under the Constitution of 1777, a Council of
Revision, consisting of the Governor, the Chancellor, and the judges of the
Supreme Court, which exercised a veto power over bills passed by the legislature.2 D
The first state to follow the precedent of Massachusetts was New Hampshire,
which incorporated in its constitution a provision identical in all respects with
that of its predecessor. 3° Advisory opinions have also been provided for in
the constitutions of Maine, 31 Rhode Island,3 2 Florida, 33 Colorado,84 and South
Dakota.3 5 The second Missouri constitution adopted the device in 1865,80
but it had an ineffective history37 and was abandoned by constitutional revision
in 1875.38 Different versions of the expediency and desirability of the practice
are reflected in the statutory enactments of Vermont,, 9 Delaware,*" and
Alabama. 41 A Minnesota act42 conferring advisory functions on the highest
court of the state was held unconstitutional in 1865.P' In Connecticut"4 and
Ohio,45 the judges have adhered to constitutional limitations and refused to
give opinions when requested by the legislature. The power to act in an
advisory capacity under any circumstances has been explicitly denied in North
Carolina, 46 Nebraska, 47 and New York.4 8 There is an interesting incident
in an old Pennsylvania report in which the court delivered a voluminous
opinion on stated questions at the request of the legislature, although there
was no constitutional or statutory provision authorizing such request. 40
A survey of the leading cases in the various state jurisdictions indicates a
tendency to contract the scope of the duty and to condition the propriety of
its performance upon certain well-defined principles.50 There is no absolute
obligation to answer the questions submitted if, in the exercise of its discretion,
the court finds the inquiry without the scope of its duty.51 The question must
be publici juris,52 and must neither involve nor directly affect private rights
or interests. 53 The reference must not embrace any issue of fact.64 When
the question seeks an exposition of certain provisions of the constitution, it
must relate to definite legislation then pending,", and such reference must not
be a veiled attempt to elicit views as to the sufficiency or wisdom of such
legislation. 8 In Massachusetts, it has been stated that the questions proposed
need not be such as might possibly have come before the court when acting
in its formal judicial capacity.57 In most s jurisdictions, the opinions rendered
do not have the authority of decisions and are consequently accorded less
weight in later litigation. 9
The consensus of opinion of those authorities who have examined the
operation of the device in the several states appears to be definitely favorable 6 0
The intermittent career of the advisory opinion in our national history finds
explanation in the circumstances which have surrounded the development of
our constitutional theory. The initial debate upon the subject occurred at the
Constitutional Convention of 1787.61 On June 4, the delegates deleted from
Edmund Randolph's resolution dealing with the power to negative acts of the
legislature, a provision for joining the judiciary with the Executive in
exercising this right of veto.62 The minority in favor of the plan displayed a certain
tenacity of purpose and it was not until the proposal had been defeated on
three subsequent occasions that it was ultimately abandonedp On July 21,
Gorham of Massachusetts, exhibiting the influence of the constitution of his
state, suggested the adoption of a provision allowing the Executive to obtain
57. See Opinion of the Justices, 126 Mass. 557, 566 (1878) (opinion is particularly useful
for its thorough history of the English background of the device). However, the
Massachusetts provision has been specifically construed not to authorize the impofition upon the
court of functions vested exclusively in other departments of the government Case of
Supervisor of Elections, 114 Mass. 247 (1873) ; Boston v. Chelsea, 212 Mass. 127, 98 N. E.
58. Colorado seems to be the only exception. See note 16, supra.
59. Green v. Commonwealth, 94 Mass. 155 (1866); Loring v. Young, 239 Mass. 349,
132 N. E. 65 (1921) (both the majority and the dissent expressly denied the influence of
previous advisory opinions as judicial precedents) ; In re Opinion of the Justices, 76 N. H.
597, 79 At. 490 (1911); In re Opinion of the Justices, 41 R. I. 209, 103 At]. 513 (1918).
60. Dubuque, Duty of Judges as ConstitutionalAdvisers (1890) 24 Airm. L. Rlv. 369;
EMLIGWOOD, DEAR NTAL CoopmAmnox3N STATE GovT-.mr (1918) passm; Clovis
and Updegraff, Advisory Opinions (1928) 13 IowA L. REv. 188; Hudson, Advisory Opinions
of Nationaland InternationalCourts (1924) 37 HARv. L. REv. 970; Smith, Advisory Opinions
in North Carolina (1929) 7 N. C. L. Rnv. 449. But see Frankfurter, A Note on Advisory
-Opinions (1924) 37 HARv. L. Rxv. 1002, 1006, 1008.
61. It must be remembered that the atmosphere surrounding that famous assembly was
one of compromise induced by fear. Consistency of principle did not characterize the
discussions at the Convention. Unity of action was achieved only by resort to conce=ions,
the delegates appreciating the profound need for immediate consolidation of the Union
-to avoid incipient conflict and anarchy. WAmra, TuM MA=ixG or TIM Co:.sTr= oN
(1929) 54, 733, et seq.; BECx, THE CoNsTrru ,Nor r Ur'rn) STArTs (1933) 52.
62. WA r, op. cit. supra note 61, at 186. It is recorded that Jefferson, Wilson,
Ells-worth, Madison, and Mason favored this provision, feeling that it would prevent legislative
-encroachments on the judicial power. WA=N,op. cit. supranote 61, at 332. The majority
of the delegates, including Charles Pinckney, were opposed to it on the ground that the
question of the constitutionality of an act of Congress pas-sed over such veto might come
up before the judiciary at a later date and that the judiciary ought not to enjoy the
oppor-tunity to pass twice on such act, once in a legislative or executive capacity, and once judi.
,cially. Wmim, op. cit. supra note 61, at 186.
advisory opinions from the Supreme Court.64 There is no evidence of
discussion upon this suggestion and the issue was suspended until August 20,
when Charles Pinckney made a formal proposal to vest in "each branch of the
legislature, as well as the Supreme Executive . . . authority to require the
opinions of the Supreme Court upon important questions of law and upon
solemn occasions."6 5 The proposal was referred to the Committee on Detail,
but never reported on by it nor revived by Pinckney." History does not
record the manoeuverings and compromises which must have attended this
abrupt termination of the issue.
In 1790, Hamilton, then Secretary of the Treasury, addressed a letter to
Chief Justice Jay seeking the latter's opinion as to what action should be taken
on certain resolutions recently passed by the House of Representatives of
Virginia vigorously condemning projected federal legislation for the assumption
of state debts and the redemption of the public debt. The evasive tone of
Jay's cool and restrained reply foreshadowed his later position with regard to
extra-judicial opinions. 67 On July 8, 1793, Washington, finding himself
harassed by the strained international situation then existing,08 acceded to
the importunities of Jefferson,6 9 and took the liberty of instructing that a letter
be sent to Jay asking the justices whether the President might have the benefit
of their advice on certain questions of law.10 Finally,71 on August 20, the
Court answered through Jay, stating with -due deference, but with firm
conviction, their inability to assist the Executive in the matter without
overstepping the limits of their duties as embodied in the Constitution. 2
It is to be noted that this refusal was made in the face of an impression
then prevalent in various quarters that the President bad the right under the
circumstances to require the advice of the Court. 73 Professor Thayer has
commented that had the questions been of a different character or been
proposed at a less tense moment, the justices might well have ventured their
opinion and thus erected a prece7d4ent which would materially have altered the
subsequent history of the device.
64. WARREN, op. cit. supra note 61, at 506.
65. WARREN, op. cit. supra note 61, at 505.
67. 1 WAuN, THE SuPRa-E COURT iN UxNio STATES HiSTORY (2d ed. 1928) 52.
68. Considerable tension had been created by the Genet protest relating to the seizure
by the Federal government of prizes taken by French privateers. See 1 WAuiRN, op. Cit,
supra note 67, at 108.
69. 1 WARREN, op. cit supra note 67, 109. Hamilton had objected to this reference to
the Court, although he had himself corresponded with Jay on a previous occasion and had
in fact consulted personally with Jay on the same matter. Notwithstanding, he complied'
with Washington's request and framed the twenty-nine questions relating to international'
law and the construction of the French and British treaties. Ibid.
71. On July 20, a preliminary letter of reply was sent indicating the difficulty of
determining the propriety of the request and the reluctance to decide the issue until certain col.
leagues had returned from circuit duties. 1 WARREN, op. cit. supra note 67, at 110.
73. 1 WARREN, op. cit. supra note 67, at 109.
74. TnAYER, LEGAL ESSAYS (1908) 54.
An extraordinary incident occurred during the administration of Monroe."
On May 4, 1822, the President had vetoed a bill which sought to extend the
federal power over turnpikes within the boundaries of the states, and he had
embodied his views as to the limitations of the power involved in a lengthy
pamphlet, a copy of which was transmitted to each of the justices. Marshall
replied, expressing his agreement in general terms with the Executive. 0 Story
answered but merely acknowledged receipt of Monroe's communication,
without expressing any opinion on the question.j 7 Shortly thereafter, it appears
that Justice Johnson obtained the views of his associates and with their consent
actually forwarded their joint opinion to the President." Research does not
disclose a single other instance in which the Court or the members thereof
have acted in a similar informal capacity.
There is, however, one other occasion worthy of mention in which the
justices of the Court did depart from their usual routine. The Hayes-Tilden
election of 1876 had ended in such a way as to leave the result in doubt, and
an Electoral Commission was created by act of Congress in 1877 with complete
authority to decide the dispute which had arisen over the double returns
involved. The roster of the Commission included five justices of the Supreme
Court, four of whom were designated in the act, the choice of the fifth being
left to the discretion of the four so specified.70 Curiously, no objection was
ever made by the Court to the duties thus conferred. It is a matter of record
that every member of the Commission favored by his vote that view which
would result in adding to the electoral vote of his party8 ° The reflection
cast by such uncompromising loyalty upon the impartiality and integrity of
the justices did not help the prestige of the Court.8 '
Supreme Court Decisions
The policy of abstention from duties regarded as non-judicial in character
has been frequently applied in formal litigation. The influence dominating
this line of development appears to be the preconception of the Court as to
the relative necessity of limiting the scope of judicial review so as to preserve
intact the status of the judiciary as an independent organ of the federal
government. It has therefore refused to act unless a case or controversy82
cognizable by the judicial power 88 has been presented. In deciding upon the
justiciability of the issues submitted, it has formulated the following criteria:
first, that there be interested parties asserting adverse 84 rights or claims; second,
that the element of finality attach to the decision rendered so that it be res
adjudicata between the litigants; and third, that the relief sought in no way
entail the performance of advisory duties by the Court.
The types of proceedings which have been dismissed for failure to satisfy
the first criterion include fictitious suits,85 anticipatory actions,80 moot
questions, 7 and cases involving insufficiency of complainant's interest.88 The cases
falling within the second category in which jurisdiction has been disclaimed
have involved appeals from administrative findings- in which the Court was
reluctant to act because it appeared that its conclusion might be subject to
Asylum, 64 Fed. 331, 336 (C. C. A. 1st, 1894). Another explanation is that "controversies"
applies only to civil suits, while "cases" has a wider application so as to include criminal
proceedings. In re Pac. R. R. Com'rs., 32 Fed. 241, 255 (C. C. N. D. Cal. 1887). This
latter view is cited with approval in Muskrat v. United States, 219 U. S. 346, 356 (1911).
83. According to Gordon v. United States, 117 U. S. 697, 706 (1864), judicial power
merely embodies the meaning past experience had affixed to the term, and does not expound
a new concept. One of the earliest definitions was given by Marshall when a member of
the House of Representatives. ".... a question must assume a legal form for forensic
litigation and judicial decision.... There must be parties to come into court who can be reached
by its process . . . whose rights admit of ultimate decision." 18 U. S. Appendix 16, 17
(1820). This conception was repeated by Marshall when Chief Justice in Osborn v. United
States Bank, 22 U. S. 738, 819 (1824), and was later approved in Smith v. Adams, 130
U. S. 167, 173 (1889).
84. Williams v. Hagood, 98 U. S. 72 (1878). As a general rule, however, whether in
actuality there is an antagonistic assertion of rights so that judicial intervention is
imperative, is not determined abstractly but depends upon the existence of the other elements
regarded as conditions precedent to the Court's power to act.
85. Lord v. Veazie, 49 U. S. 251 (1850) (pending appeal, one party to the suit acquired
the other's interest); Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339 (1892)
(Court seemed to suspect parties of attempting to preclude inquiry into significant matters
by submitting an agreed statement of facts). Cf. Fletcher v. Peck, 10 U. S. 87, 146 (1810);
Buchanan v. Warley, 245 U. S. 60 (1917).
86. Mayre v. Parsons, 114 U. S. 325 (1884) (issue not yet ripe); New Jersey v. Sargent,
269 U. S. 328 (1926) (bill to enjoin enforcement of federal water power act dismissed for
failure to show any project of state impeded, or right prejudicially affected by the
operation of the federal statute). See criticism of latter case in Comment (1926) 35 YALE L. J.
87. Singer Mfg. Co. v. White, 141 U. S. 696 (1891) (tax paid pending appeal seeking
reversal of decree ordering payment); Mills v. Green, 159 U. S. 651 (1895) (suit to be
registered as voter at election which had already been held); United States v.
HamburgAmerican S. S. Co., 239 U. S. 466; Atherton Mills v. Johnston, 259 U. S. 13 (1922) (lapse
of time brought minor whose employment was gravamen of the suit to an age not within
the limits of the Child Labor Tax Act); Barker Painting Co. v. Local No. 734, 281 U. S.
462 (1930) (strike had ended and defendants had returned to work).
88. Fairchild v. United States, 258 U. S. 126 (1922) (plaintiffs, as members of
organization disseminating information on constitutional law, sought to enjoin enforcement of 19th
Amendment on ground of improper ratification); Texas v. Interstate Commerce Comm.,
258 U. S. 158 (1922) (persons directly affected by statute questioned by state not made
parties to action; bill dismissed even though the citizenship of such necessary parties
revision by an executive or legislative body.89 In the third classification may
be grouped those cases where the Court was disposed to regard any opinion
it might render purely as informative to some other governmental authority.90
A somewhat different view of the fundamental premises underlying this
deliberate contraction of the Court's jurisdiction is presented in the argument
that courts, apart from constitutional limitations and in the final analysis, are
forums for disputes rather than oracles of abstract declarations.0 It is
submitted that this emphasis upon the conventional role of the judiciary in any
system of society has tended to divert attention from and underestimate the
force of the doctrine of separation of powers. While this theory may be
defensible in other respects as a useful generalization, its validity as a universal
proposition applicable to all the facts is something less than self-evident.
The practice of asserting and denying rights for the purpose of constructing
a test case is a common phenomenon, and has existed from the early days
of the Court.92 The test case, of course, does not contravene the requisite
conditions of justiciability but the assumption of jurisdiction by the Court
with knowledge of the intent with which such a suit is instituted, implies an
appreciation of the fact that the essential relief being administered is not
vented their being joined consistent with limitations of the Court's jurisdiction) ; cf. Stearns
v. Wood, 236 U. S. 75 (1915); Massachusetts v. Mellon, 262 U. S. 447 (1923); Edward
Hines' Trustees v. United States, 263 U. S. 143 (1923). The interest required must be
personal and not merely official. See larhall v. Dye, 231 U. S. 250, 258 (1913) and caves
cited therein; cf. Florida v. Mellon, 273 U. S. 12, 17, 18 (1927).
89. Hayburn's Case, 2 U. S. 408 (1792) (Court refused to act as a commiL-ion to
investigate pension claims of war veterans under an act of Congress, it appearing that their
decisions would be reviewable by the Secretary of War); Sanborn v. United States, 148 U. S.
222 (1893) (jurisdiction found lacking because no final judgment was obligatory on
Department of Interior or enforceable by execution from any court).
90. Muskrat v. United States, 219 U. S. 346 (1911) (Court declared appeal from Court
of Claims was brought only to test constitutionality of Indian Land Act); Keller v. Potomac
Electric Power Co., 261 U. S. 428 (1923) (Congress may vest performance of administrative
and other extra-judicial duties in legislative, but not constitutional courts); Postur Cereal
Co. v. California Fig Nut Co., 272 U. S. 693 (1927) (Court will not review administrative
proceedings of Court of Appeals of District of Columbia); Federal Radio Comm. v. General
Electric Co., 281 U. S. 464 (1930) (same); see Liberty Warehouse Co. v. Grannis, 273
U. S. 70, 74 (1927); Willing v. Chicago Auditorium Ass'n, 277 U. S. 274, 289 (1928).
91. See Frankfurter and Landis, Power of Congress over Procedure in Criminal
Contempts (1924) 37 HAnv. L. Rxv. 1010, 1020. The theory that it is the characteristic of
courts to decide and not to advise, that their work should be definitive and not consultative,
is embodied in the constitutional principle that courts should decide constitutional questions
only when absolutely necessary. See 1 Coo=.E, CoNs-mur o:;r. L=rAwio.,s (8th ed. 1927)
92. Hylton v. United States, 3 U. S. 171 (1796) ; Wallace v. Adams, 204 U. S. 415 (1907);
cf. Lord v. Veazie, 49 U. S. 250, 254 (1850) ; Chicago & Grand Trunk Ry. Co. v. Wellman,
143 U. S. 339 (1892) (Court declined jurisdiction of a friendly suit ostensibly on ground
that it does not supervise legislative acts; real basis of decision is suggested in the Court's
criticism of the agreed statement of facts submitted, which seemed to preclude inquiry into
other facts essential to a proper determination of the case). The practice has become
particularly prevalent with the advent of the New Deal, under which the appeal from
legislation to adjudication has become almost a habit.
merely the disposition of the overt dispute but a declaration of the law which
will be uniformly available to a host of potential litigants.98
Injunctions have frequently been allowed restraining the enforcement of
statutes before any attempt to do so had been made. 94 By invoking the
preventive jurisdiction of equity, 5 the petitioner is enabled to override the
objection that the main purpose of the suit was to secure a declaration as to
constitutionality.9 6 Yet the fundamental fact is that the restraining order is
not addressed to any transgression in praesenti but is distinctly intended to
relieve from irreparable injury perceptible only in futuro as to which the Court
is necessarily reasoning beyond the immediate facts and according to the logic
A further significant exception that has been engrafted upon the traditional
formula of judicial action is the fact that Congress can confer administrative
duties on legislative courts. 9 8 The immunity of courts created under and by
Article III from the imposition of such duties in no way detracts from the
purely extra-judicial capacity in which the former type of court operates.
True it is that the findings of such courts are without force as judicial
pre93. A similar departure from orthodox canons may be pointed out in certain cases where
the element of conflict or hostility between the parties, the most common attribute of a
dispute or controversy, was not present before the Court, the defendant manifestly being
interested in the same judgment as the plaintiff. Cotting v. Kansas City Stock Yards Co.,
183 U. S. 79 (1901); Kentucky v. Indiana, 281 U. S. 163 (1930). Another refinement Is
revealed in those cases in which the question of separation of powers was apparently not
significantly involved, and the Court was accordingly less strict in applying its jurisdictional
standards. Interstate Commerce Comm. v. Brimson, 154 U. S. 447 (1894) (majority
refused to entertain contention that statute would make circuit court of the United States a
mere adjunct of an administrative body; three justices dissented, stating that the question
of separation of powers was more sharply in issue) ; Minnesota v. Hitchcock, 185 U. S. 373
(1902) (Court was reluctant to decline jurisdiction and seemingly anxious to decide case
on its merits).
94. Ex parte Young, 209 U. S. 123 (1908); Truax v. Raich, 239 U. S. 33 (1915); Adams
v. Tanner, 244 U. S. 590 (1917). The case, however, must not be too patently a "made"
case or it will be dismissed as collusive. Wathen v. Jackson Oil Co., 235 U. S. 635 (1915);
and see dissenting opinion of Brandeis, J., in Pennsylvania v. West Virginia, 262 U. S. 553,
605, 610 (1923).
95. 1 POMEROY, EQUITY JURISPRUDENCE (4th ed. 1918) § 112.
96. See Ex parte Young, 209 U. S. 123, 165 (1908).
97. Pierce v. Society of Sisters, 268 U. S. 510 (1925) (Court issued injunction against
enforcement of Oregon statute which was not to become effective until 1926, on authority of
Truax v: Raich, 239 U. S. 33  ; actually, this had the effect of a declaratory judgment
and seems to be an abuse of the injunctive remedy at this time); cf. Village of Euclid v.
Ambler Realty Co., 272 U. S. 365 (1926) (Court restricted scope of its inquiry to
necessities of the immediate issue and deemed them not worthy of injunctive relief). It Is not
uncommon, however, for a judicial decision to determine in advance what future action
will be a discharge of existing duties and liabilities. In this sense, its function seems strictly
declaratory. See People ex rel. Central Park N. & E. River R.R. Co. v. Willcox, 194 N. Y.
383, 386, 87 N. E. 517, 517 (1909).
98. Keller v. Potomac Electric Power Co., 261 U. S. 428 (1923). And see Fidelity Nat.
Bank & Trust Co. v. Swope, 274 U. S. 123, 134 (1927); Willing v. Chicago Auditorium
Ass'n, 277 U. S. 274, 289 (1928); Ex parte Bakelite Corp., 279 U. S. 438, 454 (1929); cf.
O'Donoghue v. United States, 289 U. S. 516 (1933) (dual power of Congress over the District
cedents,99 but no amount of distinctions can obscure the fact that here again
an authorized tribunal for the administration of justice is adjudicating not
upon contested legal rights but is determining or declaring in thesi what the
law is or has been.
There is an additional item of evidence which demonstrates beyond cavil
that courts function in a capacity other than that of independent societal
agencies which speak only to settle real disputes properly brought before them.
In an illuminating article written by Professor Albertsworth, 00 realism exposes
the flaws in a rigid conceptualism by offering unmistakeable evidence of the
actual performance of advisory functions by the Supreme Court, albeit through
machinery of its own choosing. Attention is first directed to the effect any
negative decision of the Court upon a given law has upon the subsequent
amendment or complete repeal of the same by the legislature.'' Primarily,
however, the author has in mind a different sphere of influence. A systematic
analysis of selected data is presented which reveals three important lines of
development by which the Court has elaborated this quasi-advisory technique.
First, through the innuendo of dicta, the Court has advised as to the correction
of future legislation, which when later presented in its desired form, has been
sustained. 102 Second, where the legislature had not responded with sufficient
alacrity to the advice thus given by the Court, a consistent policy of strict
construction was followed to compel the legislature to act.1°3 Third, inferences
contained in numerous dissenting opinions as to the probable scope of future
decisions have presaged the transmutation of such dissents into the majority
view when appropriate cases subsequently arose. 04 The author concludes from
his findings that such methods are too haphazard and uncertain to be
governmentally or socially sound and recommends improved machinery for the direct
rendition of advisory opinions by the Court. 15
of Columbia may authorize the vesting of non-judicial functions in the courts of the District,
but their status is constitutional to the extent that Congress may not alter the tenure and
compensation of the judges of these courts contrary to Article Ifl); see Comment (1933)
22 GEo. L. J. 91; (1933) 47 HARv. L. REv. 133; (1933) 32 MicH. L. REv. 103.
99. See Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, 227 (1908).
100. Albertsworth, Advisory Functions in Federal Supreme Court (1935) 23 GEo. L. J.
643. It is interesting to compare in this connection recent comment to the effect that the
Court, in anticipation of future legislation, has of its own volition initiated the consideration
of constitutional questions applicable thereto by deliberately widening the orbit of the
immediate controversy before it. Powell, Commerce, Pensions and Codes (1935) 49 H]nv. L
Rav. 1, 14, 15, 16. The same phenomenon, though treated from a different point of view,
is discussed in Frankfurter and Hart, The Business of the Supreme Court at October Term,
1934 (1935) 49 HAxv. L. Rav. 68, 102, 103.
I01. ALBERTSWORTH, loc. cit. supra note 100, at 645.
102. ALBRTswoRm, loc. cit. supra note 100, at 650-663.
103. ALBERTSwORTa, loc. cit. supra note 100, at 663-667.
104. ALBaTswoRTHi, lto. cit. suPranote 100, at 647-650.
105. ALnEnrswoRTH, loc. cit. supra note 100, at 668. Specifically, it is suggested that
the amendment can be drawn so as to allow the justices themselves to pass on the wisdom
of rendering an opinion in a particular case depending on the degree of public importance
they attach to the matter involved. Requests for an opinion could be confined only to thoce
submitted through the President. At page 669, the author intimates the possibility that
FORDHAM LAW REVIEW
There is one further argument which has been interposed against extending
the advisory opinion to the federal system which rests on no particular
application of the doctrines of constitutional theory. That is the "fact" argument
of Professor Frankfurter. 10 6 It is, perhaps, the one which carries the greatest
weight in that it does offer some estimate of the problematic value of the device
in operation. The advisory opinion, it is said, would distort the entire focus
of the judicial function in that it would require the Court to express its
judgment on abortive issues without the benefit of all the relevant facts which,
in crucial constitutional questions, are the very heart of the case.10 7 In
addition, the operation of the device would debilitate the creative responsibility
of the legislature in that it would tend to induce reliance upon the judiciary,
depriving the former of submitting its convictions to the test of trial and error
and of accumulating new facts for the vindication of its judgment which, a priori,
may run counter to settled legal principles. 10 8 Thus, an advisory opinion would
move in an atmosphere of unreality and sterile isolation, divorced from the
"impact of actuality and the intensity of immediacy."1 0 D
This argument presupposes in the first instance an emphasis upon facts over
and above principles and prepossessions of justice which has never obtained
in the decisions of the Court." 0 Further, it advances the questionable theory
that the items of experience created by the operation of a statute are an integral
the Supreme Court may construe the present Federal Declaratory Judgment act in such a
fashion as to meet the problem. This is extremely doubtful. See BORCxARD, DEcLARMORY
JumEmNTs (1934) 32, 282; cf. Henrietta Mills v. Hoey, 12 F. Supp. 61 (S. D. N. Y. 1935),
,cited note 14, supra.
106. Frankfurter, A Note on Advisory Opinions (1924)) 37 HAav. L. Ray. 1002.
107. FIANKFuR'IER, loc. cit. supra note 106, at 1003, 1004, 1006.
108. FRANKFuXTER, loc. cit. supra note 106, at 1005.
109. FRANKrURTERa, oc. cit. supra note 106, at 1006.
110. The present writer would be the last to deny Professor Frankfurter's luminous
honesty and fine sincerity as to the significance of facts in a legal question. Another
authority has aptly pointed out, however, the delusive exactness of facts and the dangers of an
extreme empiricism. Kennedy, Principlesor Facts (1935) 4 FOPDrAit L. Rav. 53. Clearly,
legal concepts have no transcendental existence apart from the experience by which they
are formulated, but facts are never observed without benefit of theory. Yntena, Tise Im.
plications of Legal Science (1933) 10 N. Y. U. L. Q. REv. 279, 301. It is submitted that
in the crucial cases to which Professor Frankfurter has reference, involving the broad
guaranties and plenary powers contained in the Constitution, the issue was not one of fact but
of social theories consciously or unconsciously assumed. It is doubtless true that the Court
does not construe the Document from internal evidence of its meaning. It is Its concept
of the clause involved which is applied to the varied combinations of fact presented, and
it is by virtue of such generalizations that it selects and weighs such data. Conw, LAw
mm T=. SocIAL ORDER (1933) 141, 142. The issue of the Adkins case was not determined
by the fixed law prevailing over the undisputed facts, but by the majority's method of
-economic analysis and views of policy. Powell, Judiciality of Minimum Wage Legislation
(1924) 37 HAav. L. REv. 545, 572. From this standpoint, it is difficult to see in what
sense the advisory opinion would operate to jeopardize the Court's customary approach to
such cases, inasmuch as it would reduce possibly the quantity of specific facts involved but
not the ultimate generic facts which seem to condition constitutionality.
part of the factual background upon which its validity may turn.m Also,
it accepts the bitter partisanship which generally accompanies the present
procedure of plaintiff against defendant as the most adequate method of
facilitating that type of judicial inquiry which is occasioned when the processes
or regulations of government are questioned.1 12 Finally, it arbitrarily
presumes that regardless of what safeguards are contrived, and no matter what
form the device may take, it will inevitably reduce the present level of
legislative initiative and morale." 3
The Bogey of Politics
The objection has also been raised that the advisory opinion would plunge
111. This theory is to be sharply distinguished from the perfectly legitimate concept by
which a change in social and economic conditions may be properly urged in an inquiry into
the constitutionality of a statute. See Able State Bank v. Bryan, 282 U. S. 765, 772 (1931);
Home Bldg. &Loan Ass'n v. Blaisdell, 290 U. S. 398 (1934); cf. Nebba v. New York, 291
U. S. 502 (1934). What this theory urges is that the cumulative experience of the operation
of a statute may settle the question of its validity. There is no evidence, of course, that the
Court has ever delayed its decision until a statute has acquired significance as beneficial,
successful or otherwise. What Professor Frankfurter is hinting at, presumably, is that such
matters are done sub silento. But see McLean v. Arkansas, 211 U. S. 539, 550, 551 (1909),
where the Court evinces a decided disinclination to reason from facts arising subsequent to
the statute. It has been succinctly stated that the "constitutional validity of law is to be
tested, not by what has been done under it, but by what may, by its authority, be done."
Stuart v. Palmer, 74 N. Y. 183, 188 (1878); cf. Minneapolis Brewing Co. v. McGillivray,
104 Fed. 258, 269 (C. C. S. D. N. D. 1900); Matter of Richardson, 247 N. Y. 401, 420, 160
N. E. 655, 661 (1928).
112. The assumption that courts of law are more apt to apply rules of law soundly in
an atmosphere of conflict has been the subject of no little criticism. Coun.m, LAW ,m Tm
Soci.A Om (1933) 144; Arnold, Trial by Combat and thie New Deal (1934) 47 HAnv.
L. REv. 913. Under the present procedure the responsibility of selecting the issues and the
details of their presentation rests with the litigants. The approach of counsel is influenced
primarily by solicitude for clients' interests and only incidentally with the values of the
legislation involved. The hit-or-miss method of suits between individuals upon which a
waiting industry may be depending for enlightenment certainly leaves much to be desired
as a device for approving or disapproving governmental regulations. Under the advisory
opinion procedure, the Court would be less hampered by the tensity of litigation and the
contentiousness of adverse parties and freer to build its decision in conformity with the
social and economic fabric of the times. In this connection, it is often stated that lack
of argument and research by counsel before the Court would tend to result in ill-considered
opinions. See N. Y. L. J., Nov. 1, 1935, at 1614. Section 3 of the Alabama Act (see note 41,
supra) is the logical answer to this objection. It is provided therein that the justices "may
request briefs from the Attorney-General and may receive briefs from other attorneys as
amici curiae. . . 2' A similar provision might well be included in a federal act so as to
insure the adequate presentation of opposing points of view and pertinent information by
113. It seems paradoxical to assume that legislators are only politicians who will lost
both the desire and the ability to abide by constitutional limitations if the outdsoe agency
which preserves these restrictions should venture to advise them as to their derelictions before
they become effective. Even conceding the tendency of legislators to take the line of least
resistance, the advisory opinion would seem to offer an excellent opportunity for raising
the level of Congressional morality by the threat of its very proximity to legislative acts.
the Court into the arena of heated political controversies. 114 "Political" thus
becomes, like "radical" a conveniently inclusive term of opprobrium, an
argumentum ad hominem to be applied extrinsic to the merits of the proposal. 115
Clearly, there is no justification in labeling an issue political simply because it
is the subject of debate in legislative chambers. The Court is constantly being
obliged to answer questions upon which political, racial or class groups take
divergent views, and its duty in that respect exists regardless of such
controversies, which in fact have always attended important decisions on public law. 110
The most vulnerable part of this criticism is contained in its tacit inference
that the Court is merely engaged in a process of unfolding the logical content
of immutable legal concepts and is therefore demonstrating the legal Is and
not any moral or ethical Ought. In addition to the fact that immunity from
considerations of social policy does not obtain in the determinations of the
Court,"17 such a theory further pays insufficient attention to the underlying
pressures which are inseparable from the judiciary as a living organ of society
irrespective of how far removed the decision may be from the deliberations of
114. HALL, CONSTITUTIoNAL LAW (1915) 49; Grinnell, Supreme Court of the United
States and the Advisory Opinion (1924) 10 A. B. A. J. 522, 523; Beck, The Supreme Court
of the United States (1925) 31 W. VA. L. Q. 139, 150; cf. HuGHEs, TnE SUPREME COURT OF
TM UNITED STATES (1928) 32; Shephard, Democracy in Transition (1935) 29 AM. POL. Scl.
REv. 1, 17. That the advisory opinion will accentuate the pressure and impact of political
issues upon the Court is an argument that cannot be buttressed by statistical proof. It is
perhaps unfortunate that there are not available resistance-and-response charts of the
Individual justices with respect to such extra-legal considerations. That the members of tile
Court are human beings will be conceded even by their strongest critics. What it is
difficult to perceive is that the human temptation to succumb to partisan politics will be
Increased by narrowing the gap between legislation and adjudication, which in some mystic
way is supposed to mitigate the tortures of the judicial conscience. It is true that In the
Hayes-Tilden affair (see notes 79 and 80, supra) the judges voted in strict conformity with
their respective political affiliations. The incident, however, does not prove the tendency
of politics to effect judicial irresponsibility. The judges were not acting in their capacity
as members of the Court and were entirely unimpeded by the dictates of constitutionalism.
That the criticism incurred by the individuals was deflected upon the collective body may
be attributed only to the vagaries of public opinion.
115. The fallacies underlying this doctrine of the total depravity of man's political nature
and the irrational prejudices for which that concept is responsible, are vigorously discussed
in CoHEN, LAW AND THE SociAL ORDER (1933) 13, 74, 150, 252.
116. A distinction should be drawn at this point between political questions and political
controversies. The latter has reference only to practical politics and the swirl of
immediate events. While the former has never been thoroughly defined, it would seem to include
only such major issues as sovereignty and form of government upon which the Court has
refused to decide in the interests of expediency. See Luther v. Borden, 48 U. S. 1 (1849);
Weston, Political Questions (1925) 38 HARV. L. REv. 296.
117. The theory of "stainless objectivity" has been exploded in Kales, The Inarticulate
Major Premise (1917) 26 YALE L. J. 519; Lerner, The Supreme Court and American
Capitalisi, (1933) 42 YALE L. J. 668, 696; Cohen, Transcendental Nonsense and the Functional
Approach (1935) 35 CoL. L. REV. 809, 842; cf. Laski, Judicial Review of Social Policy in
England (1926) 39 HARv. L. REv. 832.
118. The Supreme Court, more than any other tribunal, is far from being a disembodied
legal machine cut off from terrestial human affairs. It is, itself, a composite of social
pressures, using its representative judgment to balance those pressures to which it responds.
The structure of modern society has created a highly complex problem of
government.19 In this milieu, it is becoming more and more apparent that
the pronouncements of courts are "social events with social causes and
consequences.' 120 The present policy of the Court, upon whose vision in
computing the meaning of the Constitution rests the ultimate significance and
validity of legislative action, is laissez faire until the social equilibrium has been
sufficiently disturbed by a collision of rights as to justify its mediation. The
vindication of the vast network by which human conduct is regulated and
governmental projects are directed is thereby subject to all the protracted delay
and temporizing which are the inevitable incumbrances of procedural and
jurisdictional formulae. The federal statute thus assumes a certain transitory
and ephemeral aspect until the day of its final and formal disposition by the
Court. During that interim, the doubt and uncertainty generated by this
lack of permanence and substantiality may have hindered or entirely impeded
much of the economic life of the nation. Both labor and capital are compelled
to formulate their respective policies and activities at the risk of having their
judgment belied by subsequent events. When the law is to this degree
unascertainable and uncertain, its moral force is distinctly weakened. 1 -' On the
other hand, the operation and enforcement of the statute may have occasioned
complete and widespread reliance upon its wisdom and constitutionality. A
negative122 adjudication thereon immediately creates a penumbra of insecurity
BanrsNza, THE PROCESS or GovERN=aT (1903) 393; Aftrjs, Tn Sux,R'm Cornr or rZ=M
UNITD STATES (1912) passim. The advisory opinion neither curtails nor augments this
aspect of the Court's functional pattern. The existence of such pressures, and their relative
importance upon the Court, vary only with the importance of the questions before it.
119. Contemporary society is built upon the intricate economic structure of mass
production and high finance. Under the impact of this fundamental circumstance, there has
resulted a marked tendency toward state regulation, which it is futile to decry as
regimentation. ELLIoTT, THE NEED FOR Co.,srnr oNar. ~rnoR. (1935) 128. The last two
decades have witnessed floods of ad hoc legislation passed during recurrent crises under
the multitudinous pressures exerted through innumerable class interests-legislation animated
at its best by experimental theory or sporadic bursts of social consciousness, and at its worst
inspirited by the consideration of vote-getting. Yntema, The Implicatlions of Legal Science
(1933) 10 N. Y. U. L. Q. Ray. 280, 281; cf. Frankfurter and Hart, The Business of the
Supreme Court at October Tern, 1934 (1935) 49 HARv. L. REV. 68, 107.
120. Cohen, Transcendental Nonsense and the Functional Approach (1935) 35 CoL. L.
R.Ev. 809, 843.
121. The ineluctable truth of this fact was thus stated by Elihu Root: "The opinion that
the law is unnecessarily uncertain and complex . . . and that its administration often
results not in justice, but in injustice, is general among all ches and among persons of
widely divergent political and social opinions. It is unnecessary to emphasize here the
danger from this general dissatisfaction. It breeds disrespect for law, and disrespect for law
is the cornerstone of revolution?' Remarks at the first dinner of the American Law
Institute (1923) 1 PRocEmINGs 89. See also KocouRax, Ax I%-roDucrio.N To rum Scx=xcz or
LAw (1930) 178, 179.
122. The number of cases in which acts of Congress have been held unconstitutional
were comparatively few until recent times. With the increase in appeals from legislation to
adjudication, negative holdings have become more frequent. See WArm,% Tim
Co:surnnON, CONRESS, AND T= SuPREME Cour (1925) 272 et seq.
FORDIJAM LAW REVIEW
and uncertainty all its own. The superstructure of conduct erected by
conformity to its provisions at once loses whatever stability it once enjoyed and
the adherents of an erstwhile binding law are now confronted with the painful
problem of making the necessary readjustments. 1 2 3 The wastefulness and
costliness of this whole scheme, which assumes staggering proportions when very
important legislation is involved, e.g., the N.I.R.A., cannot be overemphasized.
It is the deliberate suspension of the note of finality which accounts for this
atmosphere of confusion attending the administration of the law and which
is becoming progressively more and more inept to solve the increasing social
need of security, of assurance and certainty as to rights of person and property.
More than any other consideration, the doctrine of separation of powers has
dulled and hampered the effective realization of these facts. That doctrine
was conceived as a precaution against tyranny through undue concentration of
power in any of the three newly-created units of authority.12 4 The radical
pattern of self-government then demanded such a scheme. The independence
that was conferred upon the judiciary merely indicated, not that the Fathers
loved the Court more, but that the series of contacts with English rule bad
taught them to love the legislature less.1 25 Despite the practical origin of the
doctrine as a technique of coordinating ambitions and achieving collective
harmony,'126 there has clustered around it a eulogistic flavor and an honorific
123. Sometimes, as has been pointed out, "the egg cannot be unscrambled" and the
statute, though interred with all due pomp and ceremony, has nevertheless left an indelible
mark upon the life and destiny of the nation. The most striking example in American
history was the law passed in 1820, known as the Missouri Compromise, which was acquiesced
in by the people for thirty-seven years and finally destroyed in Dred Scott v. Sanford, 60
U. S.393 (1857). Itis not unreasonable to think that the terrible sequel of the decision
might have been averted had the Supreme Court been able to determine the validity of that
political settlement in advance of its enforcement. See BEcx, THE CONsTnIUoN or THE
UNITED STATES (1933) 226.
A more acute analysis is contained in the observations of Professor Corwin upon the
spending power of Congress as tending to envelop the whole institution of judicial review
in an atmosphere of futility. The neutral position of the Court has resulted in the
performance of acts by the other branches of the government which, for many reasons,
could not be challenged after their occurrence. CoRWIN, T'E Twm orT Or TE SuPaEME
COURT (1934) 149 et seq. And see Massachusetts v. Mellon, 262 U. S.447, 487, 488 (1923)
(bill to enjoin appropriations under the allegedly invalid Maternity Act of 1921 denied
on the ground that the petitioner's interest as a taxpayer was insufficient to support the
suit); cf. U. S.Law Week, July 23, 1935, at 1059 (pointing out the significance of this
Immunity with respect to the A. A. A. processing taxes, and the administrative expenses of the
N. I. R. A.)
124. Sharp, The ClassicalDoctrine of the Separation of Powers (1935) 2 U. or Ci. L,
Rlv. 385, 386. It is important to note that the threefold division of powers Is a necessary
incident neither of a republican form of government, nor of due process of law. Prentis v.
Atlantic Coast Line Co., 211 U. S. 210 (1908) (guaranties of the 14th Amendment do not
include an observance of the doctrine of separation of powers); Cf. HonsoN, CxvMzArxON
AND T GROWTH or THE LAW (1935) 318.
125. CORWIN,TWiLIGHT OF THE SUrREMnE COURT (1934) 123.
126. Pound, The JudicialPower (1922) 35 HIAsv. L. REv. 787, 789. In all governments,
separate organs are provided for the exercise of the several powers, the only difference
association which has tended to envelop it in a nimbus of ivory-tower inviolability.
There are, no doubt, concrete virtues to a political system whereby one organ
is vested with power to frustrate hasty and ill-considered attempts to solve
exigent and vexatious problems though practically impotent to provide solutions
of its own. Its limitations, however, cannot be ignored. T Some direct
participation by the Court in the growing area of state responsibility has become
The value of our Constitution-in fact, of any constitution-lies in its
capacity for superimposing on new facts a continuity of purpose.120 It is not,
like the ark, too sacred to be touched. Attempts to modernize our
constitutional system have been unsuccessful principally because of the pietism which
is blind to all discovered faults and militantly opposed to any movement for
Necessity and fact have an erosive effect upon dogma and tradition. 13 ' Only
the visionary will pretend that the advisory opinion is the panacea that will
produce the long awaited millenium. There is, unfortunately, no alchemy by
which one attempt to remove the archaic and obsolete will settle all similar
problems.' 32 Yet the words of Holmes are an impetus to action. "To rest
tween them being with respect to the constitutional or legal status of these organs. Yet, the
objective is the same in every case, for "the separation is organic and is motivated in the
interest of varying concepts of efficiency and economy." WL LouGHBY, PnncsLrs or
LEacsL.ATV OROAG'zAT.oNx AND A 0sAn(1o9x34) 11.
127. The practical demands of government have frequently precluded its jejune and
doctrinaire application. Dreyer v. Illinois, 187 U. S. 71 (1902); Oceanic Navigation Co. v.
Stranahan, 214 U. S. 320 (1910); Intermountain Rate Cases, 234 U. S. 476 (1914); Maher
v. Eby, 264 U. S. 32 (1924). And see SToREY, Coiumr uuzas o:; Tra Co:.snrrurxo:. (5th ed.
1891) 393; Comment (1921) 34 HARV. L. Rav. 424; Pound, The JudicialPower (1922) 35
HARv. L. Rv. 787. The doctrine can afford a still greater degree of flexibility without
losing its essential value as a working basis upon which governmental machinery should b2
erected to cope with changing economic and social conditions. Clovis and Updegraff,
Advisory Opinions (1928) 13 IowA L. Ray. 188, 196.
128. Arnold, Trial by Combat and the New Deal (1934) 47 H=nv. L. REy. 913, 937. Cf.
President Roosevelt's message to Congress: "... to make our economic and social structure
capable of dealing with modern life is the joint task of the legislative, the judicial and the
executive branches of the national government?' N. Y. Times, Jan. 4, 1934, at 1.
129. Ascoli, Realism Versus The Constitution (1934) 1 SowrL Rasas.cA 169, 179. It
is necessary to emphasize that the Constitution is not a document but a living, vorking
institution created as an instrument for the achievement of social ends. Over and above the
language appearing in the text is a vast agglomerate of practices and doctrines which form
the blueprint of the institutional structure. See Llewellyn, The Constitution As An
Institution (1934) 34 CoL. L. Rav. 1.
130. Giddens, ConstitutionalAmendments Proposedin the Sewnty-Third Congress (1935)
9 U. OF Cm. L. REv. 213, 241. Needless to say, tradition need not be disrupted for minutiae,
nor should the Constitution be altered for light and transient causes. Machen, The Elasticity
of the Constitution (1900) 14 HARv. L. Rav. 200, 205. Yet, the attitude of sanctimonious
reverence and exclusive devotion to the past is apt to impoverish our outlook on the present
and make us forget that the law can be remoulded nearer to the heart's desire. Conma, L&ve
AND a SocL ORDER (1933) vii.
131. See Loeb, Fact and Fiction in Government (1934) 28 A-s. Por.. SC.L Rav. 1, for a
discussion of some of the traditions which persist as anachronisms in modern society.
132. It may be well to mention at this point a few details worthy of consideration when,
upon a formula is a slumber that, prolonged, means death." 183 The added
security and certainty afforded the operations of government commend the
advisory opinion as an integral instrument of effective administration.
THE CONSTITUTIONALITY OF THE TENNESSEE VALLEY AUTHORITY.-The
constitutionality of the elaborate and extensive power development program of
the federal government1 will be tested in the Supreme Court during the present
term in so far as this program is embodied in the Tennessee Valley project.
While the movement for developing the Tennessee River is not of recent origin,;
the whole project as now conceived is a colossal experiment in regional planning,8
particularly identified with the present administration and as characteristically
"New Deal" as the N.I.RA. Will it meet the same fate?4
as, and if the advisory opinion is introduced into fedeial jurisprudence. It is of primary
importance that a reasonable time be allowed for a thorough disposition of the questions
submitted. Also, some precaution will have to be taken against overwhelming the Court with
minor and insignificant matters. These are problems of legislative draftsmanship, and there
is no cause for believing that they cannot be properly and adequately handled in a carefully
drawn amendment. The objection that in all events the work of the already overburdened
Court will be greatly increased is more specious than substantial. It seems a logical
assumption that the advisory opinion will prevent considerable litigation which now engages the
attention of the Court by minimizing the number of unconstitutional laws, and that this
curtailment of litigation will at least balance the added volume of advisory duties.
133. HoLm-s, COLLECTED LEGAL PAPERS (1920) 306.
1. "Four great power areas are projected: (1) the Tennessee Valley in the southeast;
(2) the Boulder Dam on the Colorado River in the southwest; (3) the Columbia River
in the northwest; and (4) the St. Lawrence River in the northeast, the development of
which requires a treaty between the federal government and the Dominion of Canada."
Albertsworth, Constitutional Issues of the Federal Power Program (1935) 29 ILL. L. REy.
2. "Representative John R. Mitchell of Tennessee . . . during the debate on the
Tennessee Valley Authority Act, pointed out that plans for controlling the flow of the Mississippi
dated as far back as 1824, when the Secretary of War, John C. Calhoun, recommended a
survey in the interest of what was then a matter of great national importance--inland
waterway commerce. [77 CONG. REC. 2256 (1933)] ... the matter was not seriously revived
until the outbreak of the World War in 1914 . . . [when] the Federal government, as well
as private munition makers in America, began to feel the pressure for the production of
nitrates... . President Wilson secured the enactment by Congress . . . of the National
Defense Act [39 STAT. 215 (1916), 50 U. S. C. A. § 79 (1926)). The purpose of course, was
primarily for the manufacture of synthetic nitrates [i.e., artificial extraction of nitrates
from the atmosphere] in the interest of national defense . . . over $100,000,000 was spent
for the construction of Wilson Dam at Muscle Shoals, Ala., together with two subsidiary
nitrate plants and minor incidental projects .... The War ended, however, before the project
could be carried out. After a curtailment of the construction work on the Wilson Dam In
1921, it was decided to proceed with its completion, but no decision was reached as to
the method of utilizing the power that would be developed until the passage of the
Tennessee Valley Authority Act in 1933." Welch, Constitutionality of the Tennessee Valley
Project (1935) 23 Go. L. J. 389, 391.
3. One of its primary purposes is to conduct a large-scale experiment in regional economic
and social planning. See Morgan, Planning in the Tennessee Valley (1933) 38 CUa. 1I-ST.
663; Brown, The Tennessee Valley Idea (1934) 40 id. at 410; Morgan, The Tennessee
Valley Authority (1934) 38 Sci. Mo. 64.
4. The N.I.RA. was declared unconstitutional, although on grounds which are not sImI.
22. CANADA Rxv. STAT. ( 1927 ) c. 35 , §§ 55 , 56; see Attorney General for Ontario v. Attorney General for Canada, [ 19121 A. C. 571 , 585 , 586 .
23. Luna Park, Ltd. v. Commonwealth of Australia , 32 Comm. L. R. 596 ( 1923 ).
24. COLUIBIA CONST. (1886) art . 90 .
25. PANAmA CoNsr. (1904) art . 105 .
26. 1 RODRIQUEZ , AmmcAN CONSTITUTIONS ( 1907 ) 278 , 313 , 375 , 415 ; 2 id. 336 , 337 .
27. Hammarskj6ld, The Early Work of the Permanent Court of International Justice ( 1923 ) 36 HARv . L. REV. 704 , 715 ; Hudson, Advisory Opinions of National and International Courts ( 1924 ) 37 HARv . L. REv. 970 , 992 , 999 .
28. MASS. CONST. (1780) pt . 2, c . 3, art . 2 (requiring opinions on "important questions of law and upon solemn occasions" when called for by the Governor, or either house of the legislature). The provision has survived two efforts to secure its repeal, once in 1820, and again in 1853. The first opinion was rendered in 1781. Prior to 1780, there had been a few instances of irregular solicitation of judicial advice. See ELLIN0WOO, DEPARTMENTAL COOPERATION IN STATE GOVERNNENT ( 1918 ) 30 et seq .
29. This procedure lasted until 1817. During the forty years of its practice, of the 6,590 bills passed by the legislature, only 128 were rejected . BALowxN , THE AMERICAN JuDiclAay ( 1905 ) 30 .
30. N. H. CONST . (1784) pt . 2, art. 74 .
31. ME. CONST. ( 1820 ) art. 6, § 3 (substantially like that of Massachusetts and New Hampshire).
32. R. I. CoNsT. ( 1842 ) art . 10 , § 2 (Governor or either house of legislature may call for opinions on "any question of law" ).
33. FLA. CoNsT. ( 1868 ) art. 5, § 16 (privilege of obtaining advisory opinions awarded only to the executive branch ).
34. COLO. CoNsT. ( 1886 ) art. 6, § 3 (Governor or either house of legislature may request opinions "upon important questions upon solemn occasions" ).
35. S. D. CONST. ( 1889 ) art. 5, § 13 (similar to the Florida provision ).
36. MO. CONST. ( 1865 ) art. 6, § 11 .
37. See Hudson , Advisory Opinions of National and International Courts ( 1924 ) 37
75. "The incident is one of the most interesting and unusual in our political history." Bizz=r, JuDacLA LN- ERETATio:N or Ponrrc .%. TiEORY ( 1914 ) 115 et seq. ". . . it is safe to say that nothing of the sort could happen today." HuGHES, Tnr SuxRMMrn CouRT or = UsN= STATEs ( 1928 ) 31 .
76. 1 WAnR,-, op. cit. supra note 67 , at 595.
77. 1 WAYnY- , op. cit. supra note 67 , at 596.
78. Ibid .
79. The four justices designated by the act were Clifford, Field, Strong and Miller, the first two of whom were Democrats. The fifth justice chosen was Bradley, a Republican. STxwooo, A Hwirony or PmsIDNTALm ELEcToNs (3d ed. 1892 ) 302 , 337 .
So. The entire committee included eight Republicans and seven Democrats. Hayes, the presidential candidate finally chosen, was Republican . Sr.exwooo, op. cit. supra note 79 , at 342.
81. Beck , The Supreme Court of the United States ( 1925 ) 31 W. VA . L. Q. 139 , 150 .
82. According to one view, the words are used synonymously and have no relation to any limitation or extension of the class of questions to be adjudicated. See King v . McClean