Advisory opinions and the influence of the supreme court over American policymaking

Harvard Law Review

Volumn 124, Issue 8, 2011, Pages 2064-2082

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EID: 79959832906     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (161)

1. Flast v. Cohen, 392 U.S. 83, 96 (1968);
2. Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1844 (2001).
3. The bounds of a case or controversy are delimited by the doctrines of standing, ripeness, and mootness.
4. RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 49 (6th ed. 2009) [hereinafter HART & WECHSLER].
5. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029. The Act's "individual mandate," which will require all Americans to purchase health insurance beginning in 2014, has been challenged in federal court in several districts, and one district court has held both that the individual mandate is unconstitutional and that it is not severable from the rest of the Act, meaning that the entire Act must be struck down.
6. See Florida v. U.S. Dep't of Health & Human Servs., No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011).
7. The effect of this ruling, if not reversed on review, is that a statute "approximately 2,700 pages long" and containing "several hundred sections," some of them only tangentially related to healthcare, id. at *34, and which was passed only with great expenditure of legislative resources, will be nullified because of constitutional defect in a single provision, and without the legislature's having been afforded a chance to determine before expending those resources whether the challenged provision would be upheld.
8. For convenience, this Note uses the terms "constitutional" and "unconstitutional" in a purely positivist sense: a statute is "constitutional" if the Supreme Court would uphold it at the relevant time and "unconstitutional" if the Court would strike it down.
9. Others have made the parallel suggestion that the constitutional avoidance canon of statutory construction may increase judicial influence despite being most often explained in terms of judicial restraint.
10. See United States v. Marshall, 908 F.2d 1312, 1335 (7th Cir. 1990) (en banc) (Posner, J., dissenting) ("Courts often do interpretive handsprings to avoid having even to decide a constitutional question [by instead construing statutes to avoid significant constitutional issues].
11. In doing so they expand, very questionably in my view, the effective scope of the Constitution, creating a constitutional penumbra in which statutes wither, shrink, are deformed.");
12. Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71, 74 ("[I]t is by no means clear that a strained interpretation of a federal statute that avoids a constitutional question is any less a judicial intrusion than the judicial invalidation on constitutional grounds of a less strained interpretation of the same statute.").
13. In many cases only a single provision of a larger statutory scheme will raise constitutional concerns. If that provision is judged invalid, the question becomes whether it is "severable" from the whole, allowing the remainder of the law to be left standing. See supra note 3. For simplicity, this Note will use the term "statute" to mean either a whole law or some provision thereof.
14. Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. 2 (2008).
15. See Part I, pp. 2066-69.
16. HART & WECHSLER, supra note 2, at 50-52.
17. STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES 117-48 (1997).
18. STEWART JAY, supra note 10, at 117-25, 143.
19. See id. at 121, 135-36.
20. Thomas Jefferson, Sec'y of State, to Chief Justice Jay and Associate Justices (July 18, 1793), in HART & WECHSLER, supra note 2, at 51.
21. Letter from the Justices of the Supreme Court to President George Washington (Aug. 8, 1793), in JAY, supra note 10, at 179-80.
22. It is perhaps excusable that the Justices' renunciation of advisory opinions itself came in the form of an advisory opinion.
23. Id. at 179.
24. U.S. CONST. art. II, § 2, cl. 1.
25. See Letter from the Justices of the Supreme Court to President George Washington, supra note 14.
26. William R. Casto, The Early Supreme Court Justices' Most Significant Opinion, 29 OHIO N.U. L. REV. 173, 192-95 (2002).
27. HART & WECHSLER, supra note 2, at 52-53.
28. Robert J. Pushaw, Jr., Why the Supreme Court Never Gets Any "Dear John" Letters: Advisory Opinions in Historical Perspective, 87 GEO. L.J. 473, 475-77 (1998) (reviewing JAY, supra note 10).
29. STEWART JAY, supra note 10, at 10-50 (discussing English practice);
30. id. at 51-112 (discussing American practice up to 1793).
31. HART & WECHSLER, supra note 2, at 52-53, 55-56.
32. States with advisory opinion practices include Florida, Massachusetts, and Michigan.
33. Hershkoff, supra note 1, at 1845-46.
34. Constitutional courts following the "European model," as in France and Germany, also provide advisory opinions through "abstract review."
35. Sarah Wright Sheive, Note, Central and Eastern European Constitutional Courts and the Antimajoritarian Objection to Judicial Review, 26 LAW & POL'Y INT'L BUS. 1201, 1203-04, 1209-10 (1995).
36. Finally, "the European Court of Justice, the European Court of Human Rights, and the Inter-American Court of Human Rights all enjoy explicit grants of jurisdiction to decide certain categories of properly presented abstract questions."
37. HART & WECHSLER, supra note 2, at 58.
38. STEWART JAY, supra note 10, at 161-67.
39. Id. at 166.
40. William R. Casto, supra note 18, at 191-92, 201.
41. Robert J. Pushaw, Jr., supra note 20, at 479.
42. A similar concern for the judiciary's independence and coequality with the other branches is evinced by the Justices' refusal to make decisions susceptible to reversal by the other branches.
43. Hayburn's Case, 2 U.S. (2 Dall.) 409-410 (1792).
44. Flast v. Cohen, 392 U.S. 83, 96 (1968).
45. In fact, the Constitutional Convention specifically declined to add a provision, akin to one in the Massachusetts Constitution, that would have empowered each house of Congress and the President to require advisory opinions.
46. Pushaw, supra note 20, at 478-79.
47. 5 U.S. (1 Cranch) 137 (1803).
48. Id. at 176-80.
49. Baker v. Carr, 369 U.S. 186, 204 (1962) (explaining that standing doctrine requires
50. Adverse parties with "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions").
51. Felix Frankfurter, A Note on Advisory Opinions, 37 HARV. L. REV. 1002, 1002-03(1924).
52. See id. at 1007 (referring to "[t]he grave dangers which are involved in failing to restrict very closely the exercise of the political function implicit in the power of our judiciary to disregard unconstitutional legislation").
53. Cf. MASS. CONST. pt. 2, ch. 3, art. II ("Each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.");
54. COLO. CONST. art. VI, § 3;
55. FLA. CONST. art. V, § 3(b)(10);
56. ME. CONST. art. VI, § 3;
57. N.H. CONST. pt. 2, art. 74;
58. R.I. CONST. art. X, § 3;
59. S.D. CONST. art. V, § 5.
60. If it happened that this power were widely abused for political ends, for instance by calling for opinions on implausible proposals with the aim of wasting the Justices' time and forcing them to issue unpopular decisions, the power to demand advisory opinions might be circumscribed accordingly.
61. The problem could be alleviated by restricting the power of requiring advisory opinions to the President and only high-ranking legislators (such as committee chairs) or groups of legislators (such as committees or entire houses). Or, the Court could be given channeled discretion as to which questions to address, perhaps by allowing a supermajority of Justices to refuse to issue an opinion (by analogy to current certiorari practice, under which the Court refuses to hear a case where at least six Justices prefer not to do so).
62. For a discussion of the many doctrines that have developed in state court advisory opinion practice to give courts limited discretion in whether to answer a given question
63. Jonathan D. Persky, Note, "Ghosts that Slay": A Contemporary Look at State Advisory Opinions, 37 CONN. L. REV. 1155, 1184-95 (2005).
64. To the extent that the Court might sometimes need to consider an elaborate piece of complex legislation in its entirety to determine whether it is constitutional, the advisory opinion would have to be issued fairly late in the enactment process, after a substantial portion of the enactment costs had already been expended. But that would be an atypical scenario.
65. Cf. Hershkoff, supra note 1, at 1847 & n.77.
66. Another potential analogy is to the processes by which federal administrative agencies conduct notice-and-comment rulemaking.
67. Presumably the Court would act with dispatch on these requests, recognizing that legislative time is precious. The Court has shown itself capable of addressing important questions swiftly where necessary.
68. Bush v. Gore, 531 U.S. 98 (2000);
69. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Indeed, a 1972 study of advisory opinion practice in Florida found an average time between the request and the issuance of an advisory opinion of 7.5 days
70. William M. Landes & Richard A. Posner, The Economics of Anticipatory Adjudication, 23 J. LEGAL STUD. 683, 712 (1994), whereas a 1962 study found an 8.7-year average gap between the enactment of a federal statute and its invalidation by the Supreme Court
71. see id. at 712 n.43.
72. Cf. Mel A. Topf, State Supreme Court Advisory Opinions as Illegitimate Judicial Review, 2001 LAW REV. MICH. ST. U. DET. C.L. 101, 110.
73. For practical purposes it would not be relevant whether advisory opinions were technically understood as legally "binding" or merely persuasive. Given judicial supremacy, the elected branches and lower courts could be expected to take the Justices' advisory opinion as an accurate prediction of what the Court would do in a post-enactment judicial review case and act accordingly. And the Court itself is never truly bound by its own decisions. In most state advisory opinion regimes, advisory opinions are technically nonbinding yet "are in effect and in fact a binding constitutional intervention and... are perceived and responded to as such."
74. Id. at 102-03
75. see also id. at 129-34;
76. Persky, supra note 33, at 1205 n.327 (collecting sources demonstrating "substantial academic agreement with the basic premise" that state advisory opinions, though doctrinally nonbinding, are treated as effectively binding in practice by all relevant actors).
77. In general, the Court would not be likely to approve proposals in advisory opinions only to turn around and invalidate them once they had been enacted and implemented: besides being disingenuous and manipulative, such double dealing would impose even greater costs on the Court's reputation than does straightforward countermajoritarian judicial review.
78. In other words, it would avoid the problem that the Justices identified as a constitutional defect in Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 (1792).
79. The model of legislative decisionmaking set forth in this Part draws heavily on Stephenson, supra note 7, at 11-16, 24-25, 57-58, which makes the same core assumptions.
80. This Note's thesis, however, is distinct from Stephenson's: He argues that techniques by which the Court increases legislative enactment costs for constitutionally dubious statutes can help the Court gather information on whether a statute's policy benefits sufficiently outweigh its constitutional harms to justify upholding it. By contrast, this Note contends that increasing costs for potentially unconstitutional statutes allows the Court to minimize the number of statutes it has to strike down to achieve its desired political arrangement, helping it to go farther on a limited supply of political capital.
81. This may be either because the legislators themselves are ideologically invested in their proposals, id. at 25, or because at least some of their constituents are sophisticated enough to determine whether laws supposedly passed for their benefit are actually effective in benefitting them and will respond favorably to more beneficial legislation with votes or campaign contributions
82. id. at 24-25.
83. See also id. at 24 ("[I]t seems implausible to suppose that legislators are systematically indifferent to the fate of the statutes they pass.").
84. For brevity, this Note will refer to this dominant legislative coalition simply as "Congress" or "the legislature," even though these terms are both over- and underinclusive.
85. Cf. id. at 13 n.25 ("Characterizing the legislature, or the enacting coalition, as a unitary actor that 'knows' the effect of policies on outcomes and chooses the policy that would advance 'its' interest is a shorthand way of describing this more complex collective choice process.").
86. For instance, drafting, debating, and voting on legislation takes time, an inherently scarce resource.
87. Id. at 12.
88. Moreover, decisive legislative factions may condition their support for one proposal on other factions' withdrawing decisive support for a separate proposal in logrolling arrangements, such that either taken alone could be enacted but both together cannot.
89. Furthermore, if implementation is costly, the resources sunk into implementation will have been wasted and further expenditures may be required to "reverse" the program's implementation, compounding the costs created by judicial invalidation. There are, however, some situations in which the legislature may intend a statute to be invalidated. A high-profile example is the federal Flag Protection Act passed in response to Texas v. Johnson, 491 U.S. 397 (1989), and predictably struck down the next year in United States v. Eichman, 496 U.S. 310 (1990).
90. But it seems safe to assume that in the mine run of cases the legislature does not stand to gain from invalidation and instead prefers its laws to become effective.
91. That is, the probability that it either will be upheld or will not be reviewed at all.
92. A substantial element of uncertainty is unavoidable in the application of broad constitutional provisions and prior decisions to new factual scenarios. And, as discussed below, the Court can, if it likes, manipulate congressional estimates of the probability that potential legislation is constitutional, to better align with its preferences. The Court can accomplish this by intimating its views on questions not before it, for instance in dicta or in extrajudicial writings and speeches.
93. And it can also manipulate congressional uncertainty about those estimates of the Court's views by announcing ill-defined, ambiguous doctrines.
94. Stephenson, supra note 7, at 55-62.
95. Persky, supra note 33, at 1172 ("The legislature that bears uncertainty as to the constitutionality of its enactments may delay or weaken them so as to avoid the political embarrassment or financial cost of a determination of unconstitutionality.").
96. Stephenson, supra note 7, at 11;
97. see also id. at 55-62 (describing how uncertainty in constitutional doctrine creates such a "tax" by forcing legislators to discount a proposal's expected net benefit by the probability of its not being struck down).
98. Landes & Posner, supra note 36, at 687.
99. Although this Note does not seek to advance any normative claims, it is worth emphasizing here that it would not necessarily be normatively desirable for Congress to know ahead of time whether a proposal of dubious constitutionality - a proposal that would be detrimental to some of the values that the Court sees as embedded in the Constitution - would ultimately be upheld.
100. If Congress is uncertain what the Court will do, it must implicitly account for the proposal's potential damage to those values in deciding whether to enact it, something it would otherwise do only to the extent that the popular will at the time happened to place value on the affected constitutional principles. There may be reasons to prefer that Congress be forced to undertake such an independent assessment of constitutionality.
101. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549, 1593-99 (2000).
102. Regardless, this question does go to the power of the Court relative to the elected branches in American politics: given judicial supremacy, to say that Congress should be wary of enacting constitutionally uncertain laws is to say that Congress should consider how the Court would likely view a proposal before enacting it, which is exactly what the bar on advisory opinions forces it to do. It thus increases not the power of the Constitution in the abstract, but the power of the Court as the final arbiter of the Constitution's meaning.
103. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 9 (5th ed. 2010) ("[T]he mandates of the Supreme Court must be shaped with an eye not only to legal right and wrong, but with an eye to what public opinion would tolerate.");
104. id. at 14 ("[T]he Court, while sometimes checking or at any rate modifying the popular will, is itself in turn checked or modified.");
105. RICHARD A. POSNER, HOW JUDGES THINK 375 (2008) ("What reins in the Justices... is an awareness, conscious or unconscious, that they cannot go 'too far' without inviting reprisals by the other branches of government spurred on by an indignant public. So they pull their punches....");
106. Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting) ("The Court's authority - possessed of neither the purse nor the sword - ultimately rests on sustained public confidence in its moral sanction.").
107. BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
108. Although it is hard to imagine the American people and their representatives collectively rejecting or disregarding a judgment of the Supreme Court today, the Court has been on very shaky ground at many points in the past when its median Justice was not as close to the political mainstream as has been the case for the past several decades. Consider, for example, the Federal ist Marshall Court after the landslide victory of the Jeffersonian Republicans in the 1800 election, which led the Court to accept acts by the elected branches that it considered legally dubious in Marbury and Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803)
109. BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS 163-98 (2005);
110. The famous "switch in time" of the so-called Lochner Court in the New Deal era, when the median Justice abruptly flipped from obstructionism to accommodation after President Roosevelt sought to pack the Court
111. MCCLOSKEY, supra, at 116-19
112. The various punches pulled by the liberal Warren Court in the 1950s and 1960s, such as its dodging of the interracial marriage issue in Naim v. Naim, 350 U.S. 891 (1955) (per curiam), that it ultimately resolved over a decade later in Loving v. Virginia, 388 U.S. 1 (1967)
113. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 321-23 (2004)
114. The weak "all deliberate speed" formulation with which it met Southern resistance to integration in Brown v. Board of Education, 349 U.S. 294, 301 (1955)
115. KLARMAN, supra, at 312-20, 453 ("Brown II was plainly shaped by the justices' awareness that their power is limited.
116. Id. at 453.
117. Just as this Note uses "Congress" and "the legislature" as a shorthand for the dominant legislative coalition, it refers to "the Court" or "the judiciary" as a simpler way of indicating a majority of sitting Justices, who collectively wield authority over the rest of the federal judiciary.
118. A constraint on the Court's behavior that is preliminary to external political constraints is, of course, the preferences of the Justices themselves: the Court will not seek to implement a constitutional vision that it does not in fact hold. Strong forces tend to prevent this constitutional vision from deviating much to the right or left of the national median: A potential Justice must be not only endorsed by a popularly elected President but also confirmed by a majority of the Senate, which will tend to narrow and moderate the range of possible candidates. Scrutiny of potential candidates by opposing politicians and the press is today very intense, making it difficult for individuals with known views far departing from the mainstream to be confirmed. And, assuming that the President and Senate will tend to appoint Justices who are close to the national political median but will do so only imperfectly, the now quasi-constitutional requirement that cases be decided by a majority of nine Justices makes the variance for individual Justices less significant than it would be with a smaller court, because no fewer than five Justices must depart from the mainstream in a given direction before the Court as an institution will do so on any given issue.
119. Moreover, sitting Justices will inevitably be influenced to some extent by the same forces that act on public opinion more broadly, as evidenced, for example, by Justice O'Connor's apparently changed views on the constitutionality of sodomy bans between Bowers v. Hardwick, 478 U.S. 186 (1986)
120. Lawrence v. Texas, 539 U.S. 558 (2003).
121. On most major issues the Court's median Justice has tended to track the national median fairly closely for the past three or four decades. Nonetheless, as described above, supra note 53, substantial deviations have occurred in the past and may well occur in the future.
122. It is beyond the scope of this Note to develop a sophisticated model of the constraints operating upon the Court, but a brief discussion is in order. Potential constraints take a variety of forms. First, the elected branches could act to limit the Court's power as an institution, for instance by stripping its jurisdiction over certain subject areas, increasing the Court's mandatory jurisdiction and flooding it with appeals, or simply disregarding the Court's orders. Second, the elected branches could act to elide or dilute the powers of individual intransigent Justices, whether through impeachment or Court packing. Third, the Constitution could simply be amended to override an unpopular decision; if the Justices cared only about enforcing the Constitution as it currently existed this would not trouble them, but to the extent that they endorse the values they find in the Constitution on independent grounds, they would presumably prefer not to see those values permanently excised from the founding document. Fourth, the majority of the populace or of the elected branches could react not directly against the Court's decision or the Court itself but instead against related values the Court also holds. For instance, a political backlash instigated by the decisions of a liberal Court could sweep a conservative majority into office, leading to conservative lawmaking on numerous fronts presumably dispreferred by the liberal Justices even if no attempt were made to override the specific decisions that caused the backlash. For an illustration of this last point
123. POSNER, supra note 53, at 306 (The Warren Court "create[d] new procedural rights for criminal defendants...but legislatures could and did offset the effect by increasing the severity of criminal sentences. Maybe fewer innocent people were convicted, but those who were served longer sentences; the total misery of the wrongfully convicted was not lessened." (footnote omitted)).
124. For one recent account of the many ways political realities have constrained the Court throughout American history
125. FRIEDMAN, supra note 53. For empirical analyses of the effect of public opinion and congressional reactions to controversial decisions on the Court's behavior
126. Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 AM. J. POL. SCI. 971 (2009);
127. Kevin T. McGuire & James A. Stimson, The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences, 66 J. POL. 1018 (2004).
128. Thus, the Court's decisionmaking process in a judicial review case incorporates its internal preferences and its view of external constraints as follows: R = B / C, where B equals the benefits to the Court's constitutional vision of invalidating a given piece of legislation, C stands for the cost the Justices expect to incur in terms of political capital, and R gives the trade-off rate between costs and benefits in any given case, such that the Court will expend its political capital in those cases where R is highest, so long as R > 1. A reasonable objection to the model elaborated in this Part is that although the Court is politically constrained, this "bank account" model in which the Court has finite political capital to "spend" by striking down popular government actions is unrealistic: the Court can also increase its prestige - its institutional capital - by exercising judicial review, which has been the effect of Marbury and Brown, two decisions without which the Court would be much weaker now. Nonetheless, most countermajoritarian decisions do seem to cost the Court rather than increase its capital (Marbury was a refusal to make the countermajoritarian decision
129. FRIEDMAN, supra note 53, at 60-62
130. Brown jeopardized rather than solidified the Court's power over the years immediately following the decision
131. KLARMAN, supra note 53, at 312-43).
132. This is especially true in the short run, while the decision remains countermajoritarian, and it is the short run that counts for the current Justices: the fact that Brown is today sacrosanct did not help the Court when Southern resistance threatened that decision's efficacy in the years immediately after its announcement.
133. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 HARV. L. REV. 657, 743 (2011) ("Evidently, the Court can build up a savings account of approval that it can then spend down by issuing unpopular decisions without losing public support.").
134. The necessary implication of Levinson's statement is that the "savings account"- and thus the Court's countermajoritarian capacity - is finite. At any rate, the Court's positionis no different from that of any other political actor: though the presidency as an institution, for instance, would certainly lose influence as a result of a string of weak, unassertive presidents, and might gain it through the acts of a strong leader, any given President at any given time is undoubtedly limited by political constraints.
135. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864-69 (1992) (refusing to overrule Roe v. Wade, 410 U.S. 113 (1973), in part on the ground that doing so would lead to "[t]he country's loss of confidence in the Judiciary,"id. at 867).
136. POSNER, supra note 53, at 274 ("[T]he Court is more constrained by public opinion than the lower federal courts are because of its much greater visibility...").
137. This is just one instance of a more general phenomenon: where multiple independent and coequal actors exercise shared political power, difficulties with attributing a given act or omission to a particular actor can make the maintenance of a smoothly functioning representative system more difficult.
138. See, e.g., 2 JAMES BRYCE, THE AMERICAN COMMONWEALTH 1007-08 (Liberty Fund 1995) (1888);
139. New York v. United States, 505 U.S. 144, 168-69 (1992) (discussing an analogous difficulty in assigning responsibility between state and federal governments).
140. These costs of divided government must be weighed against its benefits, including those described in THE FEDERALIST NO. 10 (James Madison).
141. Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies - and Their Connections to Substantive Rights, 92 VA. L. REV. 633, 681 (2006) ("[F]ederal courts issue unnecessary pronouncements with startling regularity: dicta, alternative holdings, and so forth." (footnote omitted)).
142. Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2815-17 & n.26 (2008) (stipulating that the right to own handguns announced in that case does not extend to possession of "M-16 rifles and the like,"
143. id. at 2817, or "the possession of firearms by felons and the mentally ill,"
144. id. at 2816-17
145. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2792 (2007) (Kennedy, J., concurring in part and concurring in the judgment) (suggesting specific methods of integrating public schools that, unlike the method struck down in the case, likely would be constitutional);
146. Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O'Connor, J., concurring in the judgment) (suggesting that Lawrence's invalidation of antisodomy laws does not imply a constitutional right to gay marriage);
147. Eugene Volokh, Advisory Opinions, THE VOLOKH CONSPIRACY (Mar.21, 2011, 12:34 PM), www.volokh.com/2011/03/21/advisory-opinions/ (discussing methods by which the Justices regularly give informal advisory opinions).
148. Stephenson, supra note 7, at 58 ("[B]y varying the probability with which a given statute will be upheld, the court can vary the effective enactment costs associated with that statute. Doing so will have a screening effect...").
149. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) ("When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932) (internal quotation marks omitted))).
150. Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 816 (1983) ("The practical effect of interpreting statutes to avoid raising constitutional questions is... to enlarge the already vast reach of constitutional prohibition beyond even the most extravagant modern interpretation of the Constitution - to create a judge-made constitutional 'penumbra' that has much the same prohibitory effect as the judge-made (or at least judge-amplified) Constitution itself.");
151. Schauer, supra note 5.
152. Schauer, supra note 5, at 88 ("Although it would be possible for Congress to amend the statute after the interpretation in order both to reaffirm (what might have been) its original view and to force the Court to confront unmistakably the constitutional question that it thought it at least partially avoided, the use of [the constitutional avoidance canon of statutory interpretation] is a sufficiently strong signal that it would be quite silly for Congress to engage in this effort only to face a highly likely invalidation.").
153. Stephenson, supra note 7, at 55-62.
154. This is not much different from saying that tax expenditures allow for more substantial congressional wealth transfers to favored constituents because they are less salient than direct spending.
155. STAFF OF THE JOINT COMM. ON TAXATION, 110TH CONG., A RECONSIDERATION OF TAX EXPENDITURE ANALYSIS 2-3 (Comm. Print 2008).
156. In both cases, the distinction would not matter given perfect information, but in the absence of perfect information it matters a good deal.
157. Another result of the Court's ability to intimate its beliefs through these surreptitious means where it so desires is that the Court has little reason to formally offer discretionary advisory opinions (as through a certiorari-style procedure). Such opinions would be more salient and therefore more costly to the Court, and would also occasion costs arising from the inconsistency of offering to issue such opinions only in the Court's discretion. Of course, formal advisory opinions might offer the Court greater clarity than it can obtain through these informal means, so there will potentially be situations in which the Court would be better off if it could issue formal advisory opinions in its discretion.
158. This hypothetical assumes that Congress lacks accurate knowledge of the Justices' view of the Court's political capital, which is probably the case even though Congress has a strong understanding of objective political reality because it has no insight into the Justices' subjective perceptions of that reality. If, instead, Congress had a more accurate understanding of the Justices' view of their own constraints, j would be higher (to account for Congress's knowledge of the Justices' unwillingness to strike down more than one law), with the possible result that Congress's expected benefit for A, B, and C - even discounted by j - would be high enough that it would prefer to enact A, B, and C rather than D, E, and F, even though there would be some chance that one would be struck down.
159. It would generally be quite costly to the Court to later strike down a previously upheld statute. See supra note 39.
160. Mel A. Topf, The Jurisprudence of the Advisory Opinion Process in Rhode Island, 2 ROGER WILLIAMS U. L. REV. 207, 218-19 (1997) ("Before the United States Supreme Court ruled the [National Industrial Recovery Act of 1933] unconstitutional, over one thousand national and local authorities were created under the statute, and for some two years they administered regulations with significant effects throughout the economy.
161. '[T]he whole fiasco could have been avoided had the federal supreme court been empowered, or required, to first express an opinion on the constitutionality [of the N.I.R.A.] before it was imposed on a helpless public.'" (footnotes omitted) (quoting R. K. Hoffman, Note, Why Not Advisory Opinions for Illinois?, 31 CHI.-KENT L. REV. 141, 141 (1952))).