Advisory Opinions

An advisory opinion is a unique type of ruling handed down by a court. Unlike most judgments, an advisory opinion is not a legally binding decision on a case. Instead, it provides guidance on a question of law without resolving a specific legal dispute. Picture a court offering advice, not a final ruling – that’s an advisory opinion.

Reading Time: 5 minutes

How Advisory Opinions Work

Typically, advisory opinions are given by a judge when requested by a legislative body or an executive official seeking advice on a potential legal issue. It is important to note that in the U.S. federal court system, advisory opinions are generally avoided due to the requirement of Article III of the Constitution that federal courts only rule on actual “cases or controversies.” However, they are more commonly used in state courts and international jurisdictions.

Advisory opinions can provide critical legal insight. However, they cannot be enforced as they are not rulings on an actual case. They are not a solution but more like a roadmap pointing towards possible legal outcomes. They can help illuminate the correct legal path for a particular situation, serving as a ‘preview’ of what might happen if the issue were to become a court case.

Impact of Advisory Opinions

Despite not being binding, advisory opinions can have significant influence. For example, in international law, advisory opinions from the International Court of Justice (ICJ) are often highly respected and can guide nations in their conduct (United Nations, n.d.). They can shape policies and laws, even though they do not force any changes. Imagine them as well-respected advice that can alter the way governments behave or the way laws are written.

Advisory opinions also have educational value. They can help everyone – from lawmakers to the general public – understand complex legal concepts. Think of them as a teaching tool, clarifying the often confusing world of law.

The Legality of Advisory Opinions by the SCOTUS

Advisory opinions, while utilized in various legal systems, are generally avoided by the U.S. federal court system, including the Supreme Court of the United States (SCOTUS). The constitutionality of advisory opinions by the SCOTUS is a subject of debate and controversy, primarily due to the requirements outlined in Article III of the U.S. Constitution.

Article III and Case or Controversy Requirement

Article III limits the jurisdiction of federal courts to “cases” and “controversies” (U.S. Constitution, Art. III, § 2). This requirement ensures that courts adjudicate actual disputes between opposing parties with a tangible stake in the outcome. The purpose of this limitation is to uphold the principle of judicial restraint and avoid rendering advisory opinions that lack the binding force of law (Lujan v. Defenders of Wildlife, 1992).

The SCOTUS Position

The SCOTUS has held that the case or controversy requirement generally prohibits advisory opinions. In Muskrat v. United States (1911), the Court clarified that it cannot provide advisory opinions outside the context of a genuine legal dispute. The Court emphasized that its jurisdiction is limited to deciding specific cases and controversies that require an actual resolution.

Exceptions to the Advisory Opinion Prohibition

Although advisory opinions are generally not permissible, there are certain limited exceptions recognized by the SCOTUS. One exception is the “collateral bar” doctrine, which allows parties to challenge the constitutionality of a law even if it has not directly harmed them but may affect their rights in the future.

Another exception is when the case becomes moot after the filing of the lawsuit but before the court’s decision. In such instances, the SCOTUS may still provide an opinion if the issue is of significant public interest and is likely to recur.

Opinions Given by Attorneys General

In addition to the courts, another important source of advisory opinions in the legal system comes from Attorneys General. Attorneys General are the chief legal officers of their respective jurisdictions, representing the government’s legal interests. They are responsible for providing legal advice and guidance to executive officials, government agencies, and sometimes even the public.

Purpose of Advisory Opinions

Advisory opinions by Attorneys General serve as a means to interpret and clarify the law. They offer guidance on legal issues, helping government officials and agencies navigate complex legal terrain. These opinions assist in making informed decisions, ensuring that actions and policies align with the law.

Requesting and Issuing Advisory Opinions

Attorneys General typically receive requests for advisory opinions from government officials or agencies seeking legal guidance. The requests outline the specific legal question or issue at hand. Attorneys General, after conducting research and analysis, issue their opinion, providing legal interpretations and recommendations based on their understanding of the law.

Non-binding Nature

Similar to advisory opinions issued by courts, those given by Attorneys General are non-binding. They do not carry the force of law or compel compliance. However, their opinions hold significant persuasive value due to the expertise and authority associated with the office of the Attorney General. Government officials often rely on these opinions to shape their decisions and policies.

Importance and Impact

Opinions by Attorneys General have far-reaching implications. They can influence the interpretation and application of the law, providing guidance on legal gray areas. These opinions can impact the actions of government agencies, shaping administrative policies and practices. Additionally, they can also assist the public in understanding legal matters and clarifying their rights and obligations.

Critiques and Challenges

Such opinions by Attorneys General are not without criticism. Critics argue that these opinions may be influenced by political considerations and agendas, potentially compromising their impartiality. Additionally, there is a concern that reliance on these opinions might result in inconsistent interpretations of the law, as different Attorneys General may hold varying legal viewpoints.

Summary

These are a distinct type of court ruling that provides guidance on a legal issue without resulting in a legally binding judgment. Typically, they are given by a judge when requested by a legislative body or an executive official. Although not enforceable, these opinions can significantly influence law and policy, both domestically and internationally. They also serve an educational purpose, demystifying complex legal concepts for the public and lawmakers alike. So while advisory opinions may not have the force of law, they undoubtedly have the power to shape it.

Modification History

File Created:  08/07/2018

Last Modified:  07/10/2023

[ Back | Content | Next]

This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.