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Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Vanderbilt Law Review

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not …

Presidential Commission On The Supreme Court Of The United States Final Report, Michelle Adams, Kate Andrias, Jack Balkin, William Baude, Bob Bauer, Elise Boddie, Guy-Uriel E. Charles, Andrew Manuel Crespo, Walter Dellinger, Justin Driver, Richard Fallon Jr., Caroline Fredrickson, Heather Gerken, Nancy Gertner, Thomas B. Griffith, Tara Leigh Grove, Bert I. Huang, Sherrilyn Ifill, Olatunde C.A. Johnson, Michael S. Kang, Alison L. Lacroix, Margaret H. Lemos, David F. Levi, Trevor W. Morrison, Richard H. Pildes, Michael D. Ramsey, Cristina M. Rodríguez, Kermit Roosevelt, Bertrall Ross, David A. Strauss, Laurence H. Tribe, Michael Waldman, Adam White, Keith E. Whittington

Faculty Scholarship

On April 9, 2021, President Joseph R. Biden, Jr. issued Executive Order 14023 establishing this Commission, to consist of “individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States.” The Order charged the Commission with producing a report for the President that addresses three sets of questions. First, the Report should include “[a]n account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice …