Thus far, we have talked about the courts ability to determine the Constitutionality of laws. However, that ability is restricted to where the courts only can answer address those issues if the issue is brought up in a “Case” or “Controversy.” Article III Section 2.

There are three main reasons for this constitutional provision.

First, the provision ensures that there is judicial restraint. Most of the issues should be solved through the legislative means. Thus, if there is a practical, real world issue, then the courts can hear it in a case involving those issues.

Second, the provision ensures that the Supreme Court works with real issues instead of resolving things based on what is hypothetical or abstract. This is a nice change where the legislation can be seen as an abstract form of rule making and the courts focus on practical resolving.

Third, it ensures that the courts focus is on those who were actually injured, rather than on those who are hoping to take advantage of the system.

So, how does the court stay within the limits? There are several rules that need to be followed. First, the courts are not allowed to issue advisory opinions. Second, the courts cannot decide political questions. Third, the parties before the court must have standing. Fourth, the case must not be premature (ripeness). Finally, the case must not be moot.

The remainder of the article will address advisory opinions. Each of the other case or controversy requirements are more broad and thus require more attention in another article.

Additional Notes

When the court decides to not rule on a case, they are exercising their “passive virtues.” This is simply another way of saying the justiciability doctrine.

Advisory Opinions

President George Washington once asked the Supreme Court for their opinion on what he should do with the war efforts between France and England. In response, the Supreme Court said that it was not in their power to deal in advisory opinions, being a court of last resort. Additionally, providing advice implies that the issue has not yet developed into a controversy. Therefore, providing an advisory opinion in the official capacity of the court is unconstitutional.

However, it is important to note that Supreme Court justices are allowed to offer advice personally. For example, the justices often provide a report to Congress and give speeches at colleges without violating the Constitution.

France does allow advisory opinions. What are some of the pros and cons of having these? The pro of having an advisory opinion is that the courts can ensure early on that a statute would be Constitutional. The con (and the pro of the case and controversy requirement) is that it is missing any practical application. With advisory opinions, the courts do not know if a statute would actually harm or violate the rights of an individual. In other words, it is a difference between abstract or practical application.

Another positive of the case and controversy requirement is that it encourages the separation of powers. That is, if you have advisory opinions, the courts are entwined with the legislature (something the founders did not want). Without advisory opinions, the courts are more subject to the people because it requires them to be subject to cases brought up by the people.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

Show Your Support


Table of Contents