GGeeoorrggeettoowwnn UUnniivveerrssiittyy LLaaww CCeenntteerr SScchhoollaarrsshhiipp @@ GGEEOORRGGEETTOOWWNN LLAAWW 1998 JJuuddggeess aass AAddvviicceeggiivveerrss 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 actsf or unconstitutionality,l egitimating 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 particularc ourse of action based on a con- cernf or rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normativej ustifica- 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, enhancingp oliticala ccountability, and en- couragingj udicial candor. In particular,P rofessor Katyal explains how ad- vicegiving can become an alternative to aggressive forms of judicial review while simultaneously maintainingc onstitutionalfidelity. 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 ProfessorN eal 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] JUDGESA S AD VICEGIVERS 1711 unconstitutionally construed and applied.., obtain an advisory decree that the Act must not be so administered."6 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 abstention8 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-ConstitutionaLl aw: ClearS tatement Rules As ConstitutionalL awmaking, 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.S unstein, 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 ...ca n improve and fortify democratic processes" (emphasis omitted)). 8.S ee 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 infra (discussing Pullman abstention). 9. The advicegiving model can be adapted to other milieus, though each poses somewhat dif- ferent issues. For example, advicegiving by lower courts naturally poses other questions, such as fractured and conflicting advice by equally weighty circuits, political inattention to court advice, and so on. 10. See U.S. CONST. art. 1m, § 1. 1712 STANFORD LA W REVIEW [Vol. 50:1709 judges have structural advantages that enable them to stand above the politi- cal fray and provide other officials with a detached, perhaps unpopular, per- spective. This article unveils a portrait of the Court that depicts it as guiding the political branches not only through its coarse mechanism of judicial re- view, but also through its more subtle power of nonbinding counseling. Examples abound. A court that writes an opinion striking down a law might provide a blueprint of a new law that might be constitutional.11 A court that is procedurally barred from reaching a constitutional issue in a death penalty case can call out to the state's courts or governor for review of the case for commutation.'2 Or that court might at least make clear that its decision not to hear the case because of a procedural bar is not an endorse- ment of the execution's constitutionality, thus precluding state officials from hiding behind what they claim to be a legitimization of the execution by the federal courts. Because of a misguided focus on interbranch and intergov- ernmental autonomy, doctrines of justiciability, abstention, political ques- tions, and the like have been phrased largely in negative terms as doctrines that preserve respect for states and politically accountable branches of the federal government by minimizing the judicial role. But once the advice- giving view is adopted, a space develops for courts to act affirmatively with- out compromising the power of these other political entities. This article explores the advicegiving approach from the vantage points of both history and theory. Part I details how federal courts have given ad- vice to political officials in many different ways since the founding. This part is intentionally sprawling. It is designed to give readers a sense of the vast and rich judicial topography upon which such a theory may be con- structed. Part II, by contrast, is highly specific and focuses the discussion on advicegiving. I have selected four Supreme Court cases, and I contrast those cases with several others to demonstrate how the Court could have done things differently had it followed the advicegiving model. This part, in many ways, is the heart of the article because its specificity allows readers to see the merits of advicegiving through concrete application. The examples themselves will yield a fresh round of criticisms of advicegiving. Part I attempts to catalog and respond to some of these objections. This article will not exhaust the objections to advicegiving, nor will it provide all the answers. It should be understood as a continuation of a story first told by Bickel; one whose twists and turns will inevitably be shaped by the ways in which courts think about their position within our federal gov- ernment. 11. See text accompanying notes 390-397 infra (discussing New York v. United States, 505 U.S. 144 (1992)). 12. See text accompanying notes 359-376 infra (discussing Gray v. Netherland, 116 S. Ct. 2074 (1996)). July 1998] JUDGESA SADV CEGIVERS 1713 I. ADVICEGIVING OVER TIME A. Types ofAdvice Since Bickel, American constitutionalists have believed that the Court has essentially three circumscribed roles. The "threefold power" is that the Court "may strike down legislation as inconsistent with principle. It may validate, or. . . 'legitimate' legislation as consistent with principle. Or it may do neither."'3 The third option is Bickel's creative attempt to transcend the either/or character of judicial review. Doing "neither" meant exercising what Bickel called "the passive virtues," a set of doctrines that courts could use to avoid deciding constitutional issues. Bickel's passive virtues centered around standing, ripeness, political questions, and denials of certioraril 4-all "techniques of 'not doing"' that permit courts to avoid the political fray 5 through silence.1 Professor Cass Sunstein has recently reinvigorated Bickelian notions with an elaborate defense of "the constructive uses of silence.1 6 Sunstein contends that judicial minimalism-the avoidance of "broad rules and ab- stract theories"--can be democracy enhancing because the judiciary's si- lence allows democratic debate to occur.17 Sunstein's minimalism is vintage Bickel, primarily concerning itself with methods of jurisprudential silence that permit the continuation of legislative and popular debate. And the judi- cial devices Sunstein adapts for that task are much the same as Bickel's pas- sive virtues: jurisdictional prohibitions, certiorari denials, and the like.18 These two authors have demonstrated that a court's refusal to decide a constitutional issue enables a social, political, perhaps even moral, conversa- tion to unfold. Unveiling a similar thought, Chief Justice Rehnquist, in pen- ning his majority opinion in Washington v. Glucksberg'9 last Term, ex- plained how the Court's decision would permit the debate over assisted sui- 13. BICKEL, supra note 1, at 69. 14. See id. at 115-98. 15. Id. at 169; see also id. at 117-27 (discussing the doctrines of standing, ripeness, political questions, and discretionary review as forms of the passive virtues). Bickel acknowledged that the passive virtues could be used as vehicles for something more than silence, but his writing on the subject is undeveloped. See, e.g., id. at 70 (observing that use of the passive virtues "does not nec- essarily forsake an educational function"); id. at 152 (describing the vagueness doctrine as a passive virtue mechanism that "asks that the legislature"t o clarify its statute). 16. Sunstein, supra note 7, at 7 (emphasis omitted). 17. Id. at 14, 19-20 ("[M]inimalism can promote democracy because it allows democratic processes room to maneuver."). 18. See id. at 7, 51-53, 99 (discussing the doctrines ofjusticiability and denial of certiorari as forms ofjudicial minimalism). 19. 117 S. Ct. 2258 (1997). 1714 STANFORD LA WREVIEW[ [Vol. 50:1709 cide to continue.20 Silence, however, is not the only alternative to judicial review. This article contends that advicegiving is a hidden fourth power for the Court, a role which lies in the interstices of the threefold power recognized by Bickel. Advicegiving is not necessarily concerned with striking down acts, or legitimating them, or staying silent via the passive virtues. Rather, it emphasizes that the Justices can act as counselors to the political branches, whether they strike down a law or uphold it. When the Court strikes down an act, it may provide advice about how to construct a constitutional act. When it upholds a particularly odious law, it may remove any imprimatur of legitimacy through explicit advice in its opinion. And when the Court uses the passive virtues, it may use advice in its written opinion to guide and channel the popular discussion to create a more productive conversation. Advicegiving thus combines aspects of each part of Bickel's threefold power. The most obvious advantages of advicegiving flow from its nature as dicta, particularly its ability to mediate the tensions in a system of law based on stare decisis. A system of precedent is desirable because it encourages predictability and gives guidance to actors about how to plan their affairs, but it also has an undesirable tendency to be crusty and inflexible. Advice in judicial decisions acts as a compromise-such language does not have the binding force of a holding yet provides some guidance and predictability for the future while simultaneously undermining some of the reliance interests that would mandate future application of stare decisis. Because advice is given ex ante rather than ex post, it can instruct actors about how to avoid conflicts with the Constitution. And the court can later reassess its earlier conclusions in light of changed circumstances, stating that those conclusions were "only dicta." To these advantages of advicegiving can also be added the virtues of an- nouncing narrow holdings, which are catalogued in Sunstein's justification for minimalism. In this sense, Sunstein's adaptation of the passive virtues comes closer to advicegiving than what Bickel initially proposed. For Sun- stein, one of Bickel's justifications for the passive virtues-a minimalist role for the judiciary-supports not only techniques to prevent courts from de- ciding various cases, but also those that encourage courts to issue narrow holdings when they do decide them.21 Sunstein thus appropriates one of the chief advantages of the passive virtues and applies it to situations in which 20. See text accompanying notes 291-292 infra (quoting Chief Justice Rehnquist). 21. See Sunstein, supra note 7, at 51-52 (noting the courts' use of narrow holdings and justi- ciability doctrines in pursuit of judicial minimalism). There is some evidence that Bickel himself was moving in this direction. See, e.g., Alexander Bickel, Obscenity Cases, NEW REPUBLIC, May 27, 1967, at 15, 17 (stating that, in obscenity cases, "it is neither wise nor is it possible.., for the Court to impose and enforce a broadly permissive constitutional rule"). July 19981 JUDGESA S AD VICEGIVERS 1715 the courts do exercise the power to strike down or validate legislation. The goal is to ensure legislative supremacy and flexibility by adopting narrow holdings. The relationship between Sunstein's minimalism and the judiciary's third power (the passive virtues) is analogous to the relationship between Judge Guido Calabresi's second-look doctrine and the courts' first power (striking down legislation).22 Under Calabresi's theory, "when the legislature has acted with haste or hiding in a way that arguably infringes even upon the pe- numbra of fundamental rights, courts should invalidate the possibly offend- ing law and force the legislature to take a 'second look' with the eyes of the people on it.'" 3 Calabresi's theory requires that when courts strike down legislation, they announce a narrow (or minimalist, in a Sunsteinian sense) holding that confines the holding to the particular time and place of the case. Second-look theories thus modify the first judicial power by coloring it with minimalism, thereby helping to preserve legislative decisionmaking. But they are still aggressive forms of judicial review because the Court is re- quired to invalidate a legislative act. These variants on the threefold power reveal how the Court can mix and match its three powers to resolve cases and controversies narrowly. But they are essentially negative doctrines designed to curb the Court's use of judicial review in the name of popular rule.24 There are, however, numerous circum- stances in which the Justices might not want to exercise their three powers fully and yet might still endeavor to provide guidance to the political branches. They might want to note the strong constitutional case against an act, but leave the decision up to the legislature rather than following 22. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 16-32 (1982) (dis- cussing the second-look principle in the common law context); Guido Calabresi, The Supreme Court, 1990 Term-Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 83, 103-07, 119-20 (1991) (discussing the second-look principle in the constitutional context). For the origin of the idea, see Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 HARV.L . REV. 1, 34 (1957) (discussing "the invocation of constitutional doubts" and its impact on the legislative process). 23. Calabresi, supra note 22, at 104 (relying on Bickel & Wellington, supra note 22, at 34- 35). 24. Sunstein makes a wonderful case for a certain type of judicial minimalism, and although acknowledging that both minimalism and "[m]aximalism can.., be democracy-forcing," he has not been concerned with the latter argument and thus has not explained how judicial strategies (apart from those where judges leave matters undecided) can reinforce democracy. Sunstein, supra note 7, at 38, 48-52 (noting that maximalist decisions may "trigger or improve processes of delibera- tion"). My work here, by contrast, attempts to fill out that picture by demonstrating how judges can reinforce popular accountability, separation of powers, and federalism through rendering judicial advice and by advocating a certain type of judicial maximalism that would permit courts to provide a range of nonbinding and broad opinions to the political branches. I also explore the federalism advantages of minimalism that are not developed in the accounts of either Bickel or Sunstein. See text accompanying notes 316-358, 374-376, 397 & 421-426 infra (discussing how the advicegiving model preserves cooperative judicial federalism). 1716 STANFORD LAWREVIEW [Vol. 50:1709 Calabresi's prescription. Or the Court might want to uphold an act, but not to legitimate it, and so on. From this perspective, many of the advantages of minimalism and sec- ond-look theories might be achieved through what I have called advicegiv- ing. I have already suggested that advicegiving can attain minimalism's ad- vantage of preserving legislative flexibility while simultaneously tempering minimalism's dangerous tendency to reduce predictability and guidance. But there are other advantages of advicegiving as well which depend on the type of advice that courts are dispensing. For example, an advantage of Calabresi's and Sunstein's approaches is that they can be used to encourage politicians to remove vagueness from legislation. One type of advicegiving, which I call "clarification," flags am- biguity and gaps in statutes and offers guidance for the political branches in resolving the ambiguity. Through clarification, the Court can both guide legislative determinations and avoid needless friction with democratically elected representatives. The Court's decision in Nixon v. FitzgeralP5 was based on clarification principles in that it announced that Congress' general statutes would be read so as not to apply to the President without a clear statement by the legislature, while warning that such a clear statement could chill the President in the performance of his official duties.26 The Court not only flagged the vagueness in the relevant statutory law, but also gave advice about the possible downside of rewriting the statutes to encompass the Presi- dent. Clarification thus not only removes statutory ambiguity, it also en- hances political accountability by requiring representatives to make clear statements for which they are responsible in the public eye. It can be a con- straining force on legislative self-dealing and shady back-room compromise. Instead of reaching to decide constitutional issues not squarely presented, the Court can use clarification to advise the political branches of possible con- stitutional problems and encourage them to revise their statutes. For example, in Greene v. McElroy,27 the Court's opinion included a long discussion of the Constitution's requirement that the accused be able to confront the witnesses against them, even in cases of national security.28 But the Court did not so hold. Instead, it held only that, as a matter of statutory interpretation, the law at issue did not authorize government officials to deny the accused the right to confront witnesses.29 The Court therefore used its advisory power to put the political branches on notice of a constitutional issue and then used its interpre- tive power to avoid deciding that issue. This is a striking use of the Court's advisory power, for it occurred in the sensitive context of national security. In 25. 457 U.S. 731 (1982). 26. See text accompanying notes 246-252 infra (discussing Fitzgerald). 27. 360 U.S. 474 (1959). 28. See id. at 495-500. 29. See id. at 508. July 1998] JUDGESA S AD VICEGIVERS 1717 response, the President quickly amended the Industrial Security Program regulations to expand the right to confront witnesses.30 "Self-alienation," another variety of advicegiving, is a two-step strategy for courts to provide counsel when they cannot use the power of judicial re- view. It is therefore particularly helpful in cases that are barred (formally or informally) from binding judicial decision by dint of the political question doctrine, ripeness, mootness, military deference, and so on. In step one, the courts make clear that their role is circumscribed by limits on judicial power but that other branches will need to scrutinize the issue because there is a gap between what is unconstitutional and what the courts may hold unconstitu- tional. This gap is widest in cases that deal with military affairs or political questions, but it exists in narrower form in many cases because courts do not review legislation for unconstitutionality in a pure sense; they review it to determine whether it is properfor them to declare it unconstitutional. In step two, the courts give advice to the relevant political actor about the constitu- tional difficulties engendered by the case and may suggest possible courses of action. Self-alienation techniques have three primary advantages. First, they can draw attention to a constitutional issue and prod legislative reconsideration. Second, they can strip away the air of legitimacy that the Court imparts to statutes it upholds as constitutional.31 When the Court announces a full withdrawal from an area and explains that the other branches are responsible for ensuring compliance with the Constitution in that area, constitutionalism and political accountability may be enhanced, not destroyed.32 And third, because counseling is not binding, the Court might feel more free to dispense such advice without worrying that it has irreversibly interfered in a matter not suited for final decision by the judiciary. "Personification," a third form of advicegiving, is advice the Court can give to define which political bodies have responsibility for which acts. It attempts to enhance accountability among different political bodies, such as Congress, the executive branch, and state legislatures and executives. Each of these entities has a natural tendency to blame the others, and personifica- 30. See Exec. Order No. 10,865, 25 Fed. Reg. 1583 (1960). 31. See Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting) ("[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Consti- tution, ...the Court for all times has validated the principle of racial discrimination ....T he prin- ciple then lies about like a loaded weapon," and "[e]very repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes."); see also CHARLES L. BLACK, JR., THE PEOPLE AND THE COURT: JUDICIAL REVIEW IN A DEMOCRACY 52 (1960) ("[T]he Court, through its history, has acted as the legitimator of the government. In a very real sense, the Gov- ernment of the United States is based on the opinions of the Supreme Court."); see text accompa- nying notes 245, 258-263, 369-376, 379-382 & 496-497 infra (discussing the Court's role as legiti- mator of particular policies). 32. See text accompanying notes 258-263 infra (discussing self-alienation and constitutional compliance).