Advisory Opinions

Advisory Opinions President George Washington sought an advisory opinion (a practice then common in state courts) from the Supreme Court on 18 July 1793 concerning the obligations of the 1778 Franco‐American Treaty. The French minister's insistence that the treaty allowed him to commission privateers in the United States seemed in conflict with Washington's recent Proclamation of Neutrality. Concerned about the imminent departure from an American port of the Little Sarah as a French privateer, Washington sought the Court's advice on twenty‐nine issues related to the treaty.

Chief Justice John Jay, in a letter requesting a delay until the full court could meet, noted that the justices saw “much difficulty” in replying. On 8 August 1793, the justices by letter formally declined to provide the requested advice, citing problems related to separation of powers. Jay stated that the justices were “judges of a court in the last resort” and should not decide matters unless brought to the courts by actual litigation. This refusal reinforced the attorney general's role as presidential legal adviser as well as the court's independence of the executive.

Although later justices were tempted to provide advisory opinions concerning circuit duty and internal improvements, they refrained, using actual litigation as the forum for issuing legal opinions. Unofficially, justices have occasionally issued legal advice to the executive or legislative branches. Observers, however, have usually considered such informal measures unfortunate partisan activities. Some state constitutions do permit their supreme courts to issue advisory opinions.

See also Cases and Controversies: Justiciability.

Joan R. Gundersen