Judicial Advisory Opinions Explained

In 2020, South Dakota Gov. Kristi Noem asked the state’s supreme court for an advisory opinion on a conflict of interest provision in the state constitution. The court obliged, opining that the provision, which bars legislators from having an interest “directly or indirectly” in contracts with the state, prohibited them from accepting federal Covid-19 relief funds.

Noem, with the support of legislative leaders, is now requesting a second advisory opinion, about what constitutes “indirect” contracts by legislators. Many hold other jobs while serving in the state’s part-time legislature. A broad reading of the constitutional provision has the potential to implicate teacher salaries, retirement funds, and more, they argue.

For readers more familiar with the federal courts, South Dakota’s use of advisory opinions — judicial guidance on a legal issue offered outside an actual case — may be surprising. The U.S. Supreme Court steadfastly refuses to issue advisory opinions. This goes back all the way to 1793, when President George Washington asked the justices to come before his cabinet and answer legal questions related to the government’s neutrality in a war between France and Britain. Chief Justice John Jay wrote on behalf of the justices to decline the request, citing the separation of powers (and conveniently avoiding a hot political controversy).

Over the years, this aversion to offering advisory opinions has hardened into a foundational principle for federal courts. Using a label perhaps better fitting a death metal band, Justice Felix Frankfurter memorably warned against advisory opinions as “ghosts that slay,” unrooted in a real controversy and aggrandizing the judiciary at the cost of popular government.

Yet, as in many arenas, states do things differently. Currently, 11 states, including South Dakota, authorize their state supreme courts to provide advisory opinions to the executive branch (and in some states, also to the legislative branch) in at least some circumstances. Typically, state courts have discretion as to whether to offer an opinion, and the topics must usually be related to the powers of another branch — for example, considering the constitutionality of a proposed statute or offering guidance on an exercise of executive power.

Most famously, in 2004, Massachusetts became the first state to recognize same-sex marriages after the state senate asked the state high court to offer guidance on the constitutionality of a proposed civil union law. While advisory opinions are nonbinding (as reflected in the name, they’re advice, not the resolution of a case), as a practical matter they function as legal precedent.

South Dakota’s recent experience highlights advisory opinions in action — including some of their pros and cons. In August, a Republican state senator who had accepted Covid-19 relief funds for her daycare business resigned and agreed to repay $500,000 after an investigation by the state attorney general’s office that relied on the court’s 2020 guidance. The resignation gave Noem the opportunity to appoint a replacement, and she cites the need to fill this vacancy before the start of the next legislative session in January as part of the reason for requesting additional guidance.

Advisory opinions let state courts move quickly, and they can provide legal certainty without the need for litigation after the fact. Noem and the legislative leaders who joined her request cite repeated questions from legislators and would-be legislators about whether their business activities run afoul of the state constitution.

At the same time, even when requests for advisory opinions are specific, they are by definition unmoored from the facts of a particular case. This might not matter in making broad pronouncements on matters such as marriage equality, but it can get trickier when courts are opining on questions where facts are likely to matter more, such as contractual relationships.

Another question is what the existence of advisory opinions means for the separation of powers. In one sense (and as Frankfurter warned), advisory opinions give judges more power. Why wait for a case when you can just say what the law is? But advisory opinions can also empower governors or legislators, who get to pick when they present questions to the court and formulate them in ways that can favor a particular interpretation. The prevalence of advisory opinions is a good reminder that state and federal courts differ not just in the substantive rights they recognize but also in how they define judicial power.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.