Since 1793, the affirmative grant of authority to federal courts in Article III of the Constitution to hear and decide cases or controversies has been interpreted to prohibit these courts from giving advisory opinions. In that year, United States Supreme Court Chief Justice Jay, Justice Cushing, and District Judge Duane rejected a provision in a 1792 act of Congress that would have required the Supreme Court to settle federal pension claims of widows and orphans subject to the approval of the Secretary of War. The basis for the position taken by the Chief Justice was "that neither the legislative nor the executive branches can constitutionally assign to the judicial branch any duties but such as are properly judicial, to be performed in a judicial manner." The Supreme Court has acknowledged this limitation on federal judicial power repeatedly since that date in its decisions, including the recent case of Arizonans for Official English v. Arizona, in which the Court faulted the en banc Ninth Circuit Court for failing to recognize "federal courts' lack of authority to act in friendly or feigned proceedings." Yet, despite the universality and age of this fundamental principle of federal jurisprudence, federal courts, including the Supreme Court, do not always honor it.
Phillip M. Kannan,
Advisory Opinions By Federal Courts,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol32/iss3/14