Judicial decisions issued about a hypothetical case, usually at the request of the legislative or executive branch to determine the constitutionality of proposed legislation.
Advisory opinions allow legislatures and executive officials to determine issues of constitutionality before proposed legislation is enacted. Although these opinions are commonly issued by some state and many foreign courts, the U.S. Supreme Court stated that the federal courts will rule only on actual controversies and not on hypothetical issues.
The prohibition on advisory opinions from U.S. federal courts dates from very early in U.S. history. On July 18, 1793, President George Washington sought an advisory opinion from the Supreme Court regarding the interpretation of the 1778 Franco-American Treaty. On August 8, 1793, the justices of the Court wrote a letter to formally decline to provide the requested advice, citing separation of powers concerns. Chief Justice John Jay stated that the justices were “judges of a court in the last resort” and should refuse to issue opinions except as a result of normal litigation undertaken by real parties in an actual conflict.
This ruling reinforced the independence of the federal courts and reaffirmed the attorney general’s role as legal adviser to the president. However, this prohibition does not apply to the states, and some state constitutions do allow the state courts to issue advisory opinions.
Separation of powers