Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1998 Judges as Advicegivers Neal K. Katyal Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1732 50 Stan. L. Rev. 1709 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Judges Commons ARTICLES Judges As Advicegivers Neal Kumar Katyal* Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power: striking down actsfor unconstitutionality,legitimating them, or employing the passive virtues. Professor Katyal contends that the Court wields a fourth power: advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particularcourse of action based on a con- cernfor rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normativejustifica- tion for the practice. Professor Katyal breaks down advicegiving into several categories and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for the coordinate branches while also serving the goals offederalism, enhancingpolitical accountability, and en- couragingjudicial candor. In particular,Professor Katyal explains how ad- vicegiving can become an alternative to aggressive forms of judicial review while simultaneously maintainingconstitutionalfidelity. INTRODUCTION Contemporary constitutional law is preoccupied with the antidemocratic nature of judicial review. Ever since Alexander Bickel first posed the coun- termajoritarian difficulty, scholars have struggled heroically to resolve the contradiction. Bickel himself might have been surprised by his successors' obsessive focus, for his work raised issues well beyond the tension between * Associate Professor of Law, Georgetown University Law Center (on leave 1998); Special Assistant to the Deputy Attorney General, U.S. Department of Justice. This article does not, of course, necessarily reflect the views of the Justice Department. For generous comments, I thank Bruce Ackerman, Alex Aleinikoff, Akhil Amar, Antonia Apps, Guido Calabresi, Lisa Cantos, Mi- chelle Carino, Viet Dinh, Michael Duggan, Chris Eisgruber, Julie Hilden, Vicki Jackson, Sonia Katyal, Bob Katzmann, David Luban, Kathy Ruemmler, Mike Seidman, Carolyn Shapiro, Laurence Tribe, Mark Tushnet, and Phoebe Yang, as well as participants in a Georgetown Faculty Workshop, where an earlier version of this article was presented. And, despite the evident disagreement, I am particularly honored by Judge Mikva's thoughtful response in Abner J. Mikva, Why Judges Should Not Be Advicegivers: A Response to ProfessorNeal Katyal, 50 STAN. L. REV. 1825 (1998). 1709 1710 STANFORD LAWREVIEW [Vol. 50:1709 democratic self-rule and the judicial negative.' In particular, Bickel explored the possibility of a more expansive role for the judiciary-the "least danger- ous branch"--in our system of government and showed how judicial deci- sionmaking might enhance or detract from political choices made by the people through their elected representatives. 2 Bickel himself realized what scholars today rarely acknowledge: A complete theory of federal courts must not narrowly focus on the few and rare instances in which a court ne- gates a law. Today's academic debate, waged in spectacular terms over the tension between democracy and judicial review, has obscured the various other roles courts play in our republican government. In addition to striking down leg- islation as unconstitutional, the judiciary performs a host of other tasks, from settling concrete disputes between parties to interpreting and even making law in areas such as antitrust and federal common law. This article concen- trates on one other judicial task-advicegiving. The article claims that the judiciary has used, and should continue to use, a range of interpretive and decisionmaking techniques to give advice to the political branches and state governments. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a rule or principle in a judicial case or controversy. Despite advicegiving's deployment in cases and controversies, the Court often expresses ambivalence about dispensing advice. Consider the following: the Court delivers "an advisory opinion unnecessary to to- day's decision" by "decid[ing] an issue that is not in dispute";3 the Court should "declare legal principles only in the context of specific factual situa- tions, and.., avoid expounding more than is necessary for the decision of a given case"; 4 the Court "is bound by two rules, to which it has rigidly ad- hered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitu- tional law broader than is required by the precise facts to which it is to be applied";s and a litigant "cannot upon mere supposition that the Act will be 1. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 127-33 (1962) (discussing the implications of the Court declining to adjudi- cate certain constitutional issues). 2. See id. at 244-72 (using the school desegregation cases as an example). 3. Grove City College v. Bell, 465 U.S. 555, 579-80 (1984) (Stevens, J., concurring in part and concurring in the result); see also Shaffer v. Heitner, 433 U.S. 186, 220-22 (1977) (Brennan, J., concurring in part and dissenting in part) (labeling part of the majority opinion "advisory" and criti- cizing it for "reaching out to decide a question that... has yet to emerge from the state courts rip- ened for review on the federal issue"). 4. Culombe v. Connecticut, 367 U.S. 568, 636 (1961) (Warren, C.J., concurring). 5. Liverpool, N.Y. & Phila. S.S. Co. v. Comm'rs of Emigration, 113 U.S. 33, 39 (1885); see also Burton v. United States, 196 U.S. 283, 295 (1905) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."). July 1998] JUDGESAS AD VICEGIVERS 1711 unconstitutionally construed and applied.., obtain an advisory decree that 6 the Act must not be so administered." Despite these declarations, this article argues that the Justices often act to provide advice in their published opinions. Indeed, advicegiving is a natural adaptation in a world in which judges fear deciding issues due to the coun- termajoritarian difficulty; those jurists who want to avoid interference with legislative power announce narrow holdings, but superimpose broad advice (a form of dicta) by fully explicating the rationale and assumptions behind a decision. The combination of "narrow holding + advicegiving dicta" enjoys a natural advantage over a broad holding in terms of democratic self-rule, flexibility, popular accountability, and adaptability. Many commentators have noticed some aspect of these concepts, most notably in connection with the Bickelian passive virtues and the role of clear statement rules.7 This arti- cle contends that these devices and many others such as Pullman abstention 8 and the political question doctrine can be linked to the advicegiving function. There are, of course, different types of advice, such as constitutional and statutory advice. There are also different recipients of advice-for example, the political branches, lower courts, litigants, and the public. This article will not attempt to defend advicegiving's use in all situations, nor will it defend advicegiving's use by all courts. Rather, this article will defend a single type of advice within a particular context: constitutional advicegiving by the Su- preme Court.9 It outlines a proactive theory of judging under which the Jus- tices may recommend courses of action to provide advice, clarify constitu- tional issues, or shine light on particular matters. In this capacity, the Court can provide federal and state governments with ways to avoid constitutional problems and sort out the constitutional issues politically, instead of relegat- ing such questions to the judiciary. The Court, by providing advice, enters into a conversation with the political branches and embraces its partnership. As the only federal officials with life tenure and guaranteed salary, 10 federal 6. Great Atd. & Pac. Tea Co. v. Grosjean, 301 U.S. 412,429-30 (1937). 7. See, e.g., BICKEL, supra note 1, at 111-98; William N. Eskridge, Jr. & Philip P. Frickey, Quasi-ConstitutionalLaw: ClearStatement Rules As ConstitutionalLawmaking, 45 VAND. L. REv. 593, 597 (1992) (noting that the Rehnquist Court has created new "super-strong clear statement rules" used to protect constitutional structures); Cass R.Sunstein, The Supreme Court, 1995 Term- Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 6-8 (1996) (exploring the use of"de- cisional minimalization" by the Supreme Court-i.e., "saying no more than necessary to justify an outcome and leaving as much as possible undecided"--and noting that such "constructive uses of silence ...can improve and fortify democratic processes" (emphasis omitted)). 8.See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 508-09 (1941) (declining adjudication on constitutional grounds because a definitive ruling on the state issue would have terminated the controversy); see also text accompanying notes 329-331