Vol. 8 No. 4 (April 1998) pp. 218-221.

MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES by Stewart Jay. New Haven: Yale University Press, 1997. 302 pages. $35.00 Cloth. ISBN 0-300-07018-7.

Reviewed by John C. Blakeman, Department of Political Science, Baylor University, E-mail: John_Blakeman@Baylor.edu.
 

As one who studies courts and constitutional law comparatively, I’ve always been struck by one political power that the United States Supreme Court denied itself early on in its history--the power to give advisory opinions. Other national courts give constitutional advice to executive and legislative branches; some of these procedures are based on constitutional provisions affecting court jurisdiction, others are more informal. What results, though, is a formal, institutional dialogue between courts and other government branches about what is and what is not constitutional.

Constitutional scholars in the United States have basically accepted the Supreme Court’s reasoning that advisory opinions violate the separation of powers. Stewart Jay’s book, HUMBLE SERVANTS, forces us to modify our views somewhat on this question. Jay delves into the history and politics surrounding the Court’s refusal to give advisory opinions, and offers insight into this episode in American political and legal history. Indeed, Jay’s historical research sheds light on a contemporary difference between high courts in the United States and other democracies.

President George Washington’s famous request to Chief Justice John Jay and other Supreme Court Justices for advice concerning international law and American neutrality vis-a-vis the war between Britain and France in the early 1790s is a staple of constitutional history. The outcome is well known: the Court simply refused to give an advisory opinion, thereby creating to the constitutional principle that the Supreme Court does not give advisory opinions in abstract cases; it only adjudicates "concrete" cases. Certainly we can argue that the Court’s definition of a "concrete" case is going to be fungible, considering the Court’s ability to modify access doctrines (standing, ripeness, mootness, etc.) Yet, the emphasis on only concrete cases makes our high court somewhat different from other high courts.

For instance, the German Federal Constitutional Court has the power to decide the constitutionality of federal or state laws that are still pending in legislatures. This power is called abstract judicial review, and is invoked at the "mere request" of the federal or state governments, or one-third of the members of the BUNDESTAG (Kommers, 1989, 15). The Canadian Supreme Court gives opinions on questions referred to it by provincial and federal governments (Russell, 1987, 91-2). While abstract judicial review cases and reference questions in Germany and Canada do not constitute a significant part of court dockets, nonetheless those procedures allow federal/state/provincial executives, and even legislators, to seek the advice of constitutional judges before a policy or law goes into effect.

Even in Great Britain, the model for judicial restraint, appellate judges interact with other political branches to a degree generally unseen in the United States. Although British judges, like their American counterparts, do not render advisory opinions directly to the executive branch, they do indirectly advise the Government of the Day on policy matters. For instance, much of the debate on a British Bill of Rights in the 1980s, and on the War Crimes legislation in 1992, was conducted in the House of Lords (the legislative part) and the most active participants in the debate were appellate judges (who serve as judges AND can also sit as legislators). Also, appellate judges have chaired several prominent government commissions, investigating topics such as criminal justice in Northern Ireland, the Brixton riots, or law reform. And, Prime Minister Eden’s blunder in sending British troops to recapture the Suez canal, in 1956, was based in part on his Lord Chancellor’s opinion (the Lord Chancellor is the highest ranking judge, and also the legal advisor to the Government) that Egypt illegally seized the canal (Griffith, 1993, 65-79).

Do the advisory powers of German, Canadian, and British judges indicate that perhaps this lack of power for Supreme Court Justices in the United States is unique? Maybe; then again, maybe not, for other high courts, such as the Australian High Court, have declined to give advisory opinions too. The impact of abstract review in Germany, reference cases in Canada, and judicial participation in Parliament in Britain is hard to gauge, simply because these instances are rare when compared with the overall picture of what judges do. Yet, this is a fundamental distinction between our own federal judicial system and other national judicial systems. Explaining this distinction is difficult, to say the least. This is where Stewart Jay’s Humble Servants significantly aids this inquiry.

Jay investigates the history behind the Court’s refusal to advise President Washington, and situates the issue in the ongoing political struggles of the early Republic. Moreover, Jay interestingly points out that prior to the creation of the first Supreme Court , state judges freely gave executives legal advice, that it was a common practice for judges to not only advise on matters of policy, but also participate in the drafting of legislation, and even serve in other political offices while simultaneously serving as a judge.

For Jay, politics were extremely important: "the surrounding political climate and the ideological orientations of key political players, some of whom were on the Court, directly influenced the Justices’ decision" to refuse Washington’s request for advice (3). Thus, when constitutional scholars assert that the Supreme Court declined to give an advisory opinion based on the theory of the separation of powers, what we get is at best an incomplete picture. Indeed, as Jay would have it, we can only fully understand the Supreme Court’s antipathy to advisory opinions if we consider the politics of the early Republic.

Prior to 1787, the English practice of judicial advisory opinions offers guidance for Jay’s analysis, and he concludes that the practice of giving extrajudicial opinions grew out of an historical relationship between the Monarch and judges.(51) Jay’s discussion of English practice certainly puts his analysis of the early Supreme Court in a broader perspective, and contributes to his overall argument.

Next, Jay focuses on the advisory role of early American judges prior to 1787. Here he concludes that "judges in the colonial structure were by their very positions continually involved in the process of advising executive and legislative bodies."(54) That is, the separation of judicial, executive, and legislative powers in colonial political structures was not pronounced, in keeping with English practice. Therefore, colonial judges saw no separation of powers barrier to advising the executive.

The discussion of English and colonial practice adds depth to Jay’s argument, and indeed does shed new light on Chief Justice Jay’s refusal of Washington’s request. Following that, Jay obligingly analyzes the Constitutional Convention, and concludes that "the delegates were well aware that British judges consulted with both the executive and the House of Lords, and at least some must have known that analogous practices were occurring in their states." As he puts it, "an advisory relationship [between the Court and President] was not inconsistent with the text of the Constitution or the views of the Philadelphia Convention. To understand why the Justices seemingly turned away from this aspect of the British legal heritage, a thorough investigation of the events leading to the refusal must be undertaken."(p, 112) Thus, taking no definitive cues from the constitutional convention that advisory opinions were clearly prohibited, Jay next turns to the political dynamics of the first government under the 1787 Constitution.

Where Jay’s analysis gets interesting is with his focus on the early Washington administration, and the foreign policy crises that the new Republic faced. For, as Jay would have it, personality conflicts in the administration, the political ideology of the federalists, and even the necessity of a pragmatic foreign policy in the face of British-French conflict, all contributed to the Supreme Court’s refusal of advisory opinions.

Jay begins by pointing out that federal judges, most of whom were federalists, freely gave advice elsewhere. For instance, grand jury charges by circuit judges, "reprinted widely in newspapers," were used to "explain and defend national policies." President Washington instructed circuit judges that "the stability and success of the national Government...would depend in a considerable degree on the Interpretation and Execution of its Laws," and "it will be agreeable to me to receive such Information and Remarks on this Subject, as you shall from time to time judge expedient to communicate"(p. 104). Of course, the Justices on circuit duty took an opportunity to inform Washington of the burdens created by circuit riding, but nonetheless Washington received "intelligence" from judges concerning how the countryside responded to federal government (and federalist) policies.

What Jay fully demonstrates is that a clear separation between judiciary and executive, and even between judiciary and Congress, was not the reality; federal judges interacted with the executive and legislature in policy debate, and rendered advice on certain issues. But for certain reasons, the 1793 Supreme Court created a "bright line" against advisory opinions.

"It is doubtful that we will ever know for certain whether the Justices in 1793 intended to foreclose all future consultations with the executive. The best that we can accomplish with available information is a reconstruction of the probable reasons by the Justices declined Washington’s plea [for advice]"(p. 153). Stewart Jay notes elsewhere that Chief Justice John Jay left a meager paper trail, so the documentary evidence that definitively shows why the Court refused advisory opinions is non-existent. One main reason the Supreme Court refused an advisory opinion was pragmatic; it simply wanted to give the executive the greatest possible leeway to manage the crisis with France. Moreover, the federalist Court did not want to hamper the executive’s power over foreign affairs too dramatically. Indeed, federalist ideology and politics undergird the arguments against advisory opinions.

Scholars of the US Supreme Court can only sit back and scratch their heads in amazement as the German Federal Constitutional Court, the Canadian Supreme Court , and even the British Law Lords interact with local and national executives and legislators, be it in the guise of abstract judicial review, reference cases, or judicial commissions or hearings in Parliament. It’s all a form of judicial advisement of non-judicial branches of government. Certainly, Germany, Canada, and Britain are Parliamentary systems, so there is a fundamental systemic difference.

German political parties that lose in the BUNDESTAG invoke the Court’s abstract review to decide abortion policy, the dissolution of Parliament, or the use of German troops in Bosnia. The Canadian Court is embroiled in the ongoing Quebec crisis through reference cases. British appellate judges are judges and legislators in the House of Lords, and the Lord Chancellor is a judge, legislator, and Cabinet member. American court watchers can only sit back and think, "maybe it's a good thing John Jay played politics, and denied Washington an advisory opinion. There but for the grace of Jay go we." Yet, then again, the American Supreme Court decides politically contentious issues, just as the German, Canadian, and even British courts do, so maybe the Court’s self-limiting stance that it only decides "concrete cases" is not that different after all. Advisory opinions may only speed up the inevitable clash in the judicial system, and nothing more.

Although Stewart Jay’s book is constitutional history and concerns an episode in the Supreme Court’s history two hundred years ago, it offers insight into a contemporary distinction between the power of our Supreme Court and other high courts. Jay delves into his topic in detail, and the result is a good analysis of the political circumstances underlying the Supreme Court’s refusal of advisory opinions, and yet another lesson in the contingent nature of the Court as an institution.

HUMBLE SERVANTS is well researched and written. I kept looking for the "law office history," but I never found it. The book addresses in detail how the Court manipulated its power to deny itself a political power in the 1790s, (in contrast to Chief Justice John Marshall’s tenure). Of course, the Court has not changed much in this respect in the last two hundred years.

 

REFERENCES

Griffith, John. 1993. JUDICIAL POLITICS SINCE 1920. Oxford: Blackwell.

Kommers, Donald. 1989. THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY. Durham: Duke University Press.

Russell, Peter. 1987. THE JUDICIARY IN CANADA. Toronto: McGraw-Hill.

 


Copyright 1998