SUPREME COURT: Advisory Opinions

The Pennsylvania Society of New York, desiring to convey an honor, invited U. S. Solicitor General James M. Beck to be its guest. It was incumbent upon Mr. Beck to make a speech, and he spoke on the Supreme Court. “Once again,” he asseverated, “the Supreme Court has survived a real crisis in its existence. A distinguished Senator, leading a new party movement . . ” In short, he recounted the history of last fall’s campaign and declared that 28,000,000 voters supported the Supreme Court and 4,000,000 turned against it. He explained at length why he believed the Supreme Court has been “of all features of our Government . . . the most successful.” He empha-sized the importance of public confidence in the Court—and then made a proposal:

In accordance with the theory of the division of Governmental authority into Executive, Legislative and Judicial branches, each entirely separate from the other, the Supreme Court makes a practice of rendering no decisions and giving no opinions except in legal cases brought under specific laws and involving specific points. As a result, Congress, when it passes a law of dubious constitutionality, is obliged to step out boldly into the dark.

The Constitution does not impose the duty of rendering advisory opinions upon the Court. Neither does it specifically forbid such opinions. When Washington was President, he inquired of the Court whether a treaty made with Louis XVI of France was binding after the Revolutionary Government had taken over that country. Chief Justice John Jay declined to have the Court furnish an opinion because it was not a litigated case. Later, Virginia and Kentucky passed resolutions of nullification; and Secretary of the Treasury Alexander Hamilton appealed to the Supreme Court for a decision. Again it refused to speak. A third appeal was made by President Monroe who asked, apropos of the Cumberland Turnpike Bill, whether Congress had authority to appropriate money for improvements wholly within a state. Then, for the first and only time, did the Supreme Court render an advisory opinion. It authorized one of the justices to notify the President of the Court’s opinion—which was favorable.

There are some striking disadvantages in the practice of the Court in rendering decisions only in litigated cases. In 1820, Congress passed a law, the Missouri Compromise, which provided that all new states admitted to the Union west of Missouri and north of 36° 30′ should be free. Later—37 years later—the Supreme Court nullified that compromise in the Dred Scott case which helped to precipitate the Civil War. Many other laws have thus hung in the balance between constitutionality and unconstitutionality for years at a time, always with the possibility of their being overruled after much mischief, perhaps, had been done by the belief that they were valid.

So Mr. Beck proposed that hereafter when Congress wishes to pass a law which the Supreme Court might over-rule, it shall request the Supreme Court by a joint resolution, signed by the President, for an advisory opinion—or really an advance opinion. The Supreme Court in such a case would have a right to refuse. It could refuse if it believed it was being drawn into a par-tisan controversy. But, in uncontroversial questions, it could render great assistance. There would be no need to pass a new law to accomplish this, as there is the precedent established by President Monroe.

The courts of the states of Massachusetts, Maine, New Hampshire, Rhode Island, Florida, Colorado, South Dakota, as well as the courts of many European countries already render such opinions. Why not the Supreme court of the U. S.?—asked Mr. Beck.