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A.“Case or controversy” requirement: Article III, §2 of the Constitution limits federal court jurisdiction to “cases” and “controversies.” The federal courts are thus prevented from issuing opinions on abstract or hypothetical questions. An important consequence of this limitation is that federal courts may not give “advisory opinions,” that is, opinions which give advice about particular legislative or executive action, when no party is before the court who has suffered or imminently faces specific injury.
Example: Secretary of State Jefferson, on behalf of President Washington, writes to the Supreme Court asking it to give informal advice on various legal issues, such as the rights and duties of the United States under a treaty with France during the 1793 European War.
Held (in a return letter to the President), the Constitution’s separation-of-powers principles limit the President, when he wants to solicit opinions, to calling on members of the Executive Branch. Therefore, the Court may not give the requested opinions. Letter from the Justices to President Washington, August 8, 1793 (reprinted in Hart and Wechsler, Federal Courts, 1973 Ed., pp. 64-66).
1. Need for focused controversy: In addition to the separation-of-powers rationale relied on by the Justices in response to Washington’s request, the ban on advisory opinions is also frequently justified by the need to have the judiciary decide only focused, specific conflicts, in which adversaries explore every aspect of the situation. Otherwise, it is feared, the court will not be adequately briefed, and may make an unwise or unduly broad pronouncement which it will then have to revise when confronted with a specific, and real, conflict. (But this problem could probably be overcome if the Court were to assign “friends of the court” or other interested parties to brief and argue the issues, even in the absence of a concrete dispute. See Tribe, p. 74, n. 7.)
2. “Strict necessity”: The ban on advisory opinions also reflects the general policy of judicial restraint in deciding constitutional issues; such issues will not be decided unless “strictly necessary.” (Most of the other preconditions for justiciability, considered later in this chapter, similarly reflect this policy of avoiding constitutional adjudication whenever possible.)