Chapter

Advisory Opinions and Judicial Supremacy

Mel A. Topf

in A Doubtful and Perilous Experiment

Published in print September 2011 | ISBN: 9780199756766
Published online January 2012 | e-ISBN: 9780199918898 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199756766.003.0006
Advisory Opinions and Judicial Supremacy

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This concluding chapter argues that advisory opinions have contributed to politicization of the judiciary and to the eclipse of civic debate. Both have long been complaints about advisory opinion jurisdiction, prominently in a 1924 article by Felix Frankfurter. The politicization and eclipse has been aggravated in recent years by the adoption in some advisory opinion jurisdictions of a public importance exception, by which the advising justices waive their own restrictions on rendering advice. The exception is so vaguely and loosely applied that it threatens to devour the restrictions altogether. With the failure of the nonbinding doctrine (discussed in Chapter 5), together with the public importance exception sabotaging the restrictions on issuing advisory opinions, the advising justices are increasingly free to impose “advice” on legislatures and governors without limit. This contributes, this chapter argues, to the politicization of the judiciary and to the withdrawal of political issues from the civic realm, resulting in a substantial contribution to the growth of judicial supremacy.

Keywords: judicial supremacy; politicization of judiciary; public importance exception; civic debate; constitutionalism; Felix Frankfurter

Chapter.  22321 words. 

Subjects: Constitutional and Administrative Law

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