Advisory Opinions (pp. 18

The Principle

Rule: Under Art. III's cases and controversies requirement, federal courts must not issue advisory opinions.

There must be an actual dispute between adverse litigants.
A hypothetical controversy does not warrant judicial review.
Ex: In Spendthrift Farm, the Court ruled that Congress tried to change the Court’s ability to render a final decision on the outcome of the shareholders’ actions. However, such would be a retroactive application of law, and thus result in an advisory opinion.
- Contrast Spendthrift Farm with Nashville C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933).
  Congress can make new laws apply retroactively:
Courts must then apply the law in reviewing judgments still on appeal that were rendered before the law in question was enacted.
The distinction, thus, is between
- cases where judgment was already rendered and appeals were exhausted, and
- cases where judgment was rendered but appeals are still pending.
If Congress could retroactively apply the law, then the Judiciary's opinions would be nothing more than advisory.

In essence, the test for an Advisory Opinion goes:

is there an actual dispute between adverse litigants?
- If yes, move on.
- If no, stop.
  - Will result in an advisory opinion.
is there a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some affect?
- If yes, move on.
- If no, stop.
  - Will result in an advisory opinion.