The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Courts Still Lack Authority to Issue Advisory Opinions
The U.S. Court of Appeals for the Sixth Circuit reminds us that there are limits to Article III.
It is not often that a federal court opinion begins by referencing the Judiciary Act of 1789, but sometimes it is called for.
Earlier this month, Judge Eric Murphy of the U.S. Court of Appeals for the Sixth Circuit wrote a short gem of an opinion in Bowles v. Whitmer reminding us all (including the litigants before him) that federal courts lack the authority to issue advisory opinions.
His opinion for a unanimous panel begins:
The Judiciary Act of 1789 required Justices of the Supreme Court to "ride circuit" by traveling great distances to resolve cases on the new circuit courts. See Pub. L. No. 1-20, § 4, 1 Stat. 73, 74–75. Losing litigants could then appeal their decisions to the Supreme Court. See id. § 13, 1 Stat. at 81. Some Justices raised "constitutional and practical" objections to this circuit-riding duty. David P. Currie, The Constitution in Congress: The Federalist Period 54 (1997). Worried about appearances of bias if the full Court affirmed a colleague, they wrote to President Washington that observers might think "mutual interest" on the Court "had generated mutual civilities and tendernesses injurious to right." 3 Joseph Story, Commentaries on the Constitution of the United States § 1573, at 440 n.1 (1833). But the Court later upheld the constitutionality of circuit riding, reasoning that the practice's continuation for a decade had "fixed" the Constitution's "construction." Stuart v. Laird, 5 U.S. 299, 309 (1803).
The plaintiffs in this case seek to reopen this debate. Michigan's legislature has waived the State's sovereign immunity by creating a specialized court, the Court of Claims, in which plaintiffs may sue the State. The Court of Claims now consists of judges from the Michigan Court of Appeals. So when parties appeal judgments of the Court of Claims, other appellate judges on the Court of Appeals review their colleagues' decisions. According to the plaintiffs, this practice violates the Fourteenth Amendment. Our resolution of their challenge must start with a different letter that the Justices wrote to President Washington. When he asked for their legal guidance on a foreign-affairs matter, they responded that they could "not issue advisory opinions" outside an actual case. See FDA v. All. for Hippocratic Med., 602 U.S. 367, 378–79 (2024) (citing 13 Papers of George Washington: Presidential Series 392 (Christine Sternberg Patrick ed. 2007)). Because the plaintiffs here seek such an opinion about the constitutionality of the Court of Claims, we agree with the district court that they lack Article III standing. We affirm.
