Advisory opinions and adequate and independent state grounds

Black-letter propositions

1. 01

   Article III limits the judicial power of the United States to the listed cases and controversies, including cases arising under the Constitution, federal laws and treaties.

2. 02

   A case or controversy implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.

3. 03

   Federal courts may not issue advisory opinions, and Congress may not assign to the judiciary duties that are not properly judicial, such as a suit created to test the constitutionality of prior acts of Congress (Muskrat v. United States).

4. 04

   The Supreme Court may review by certiorari a final judgment of the highest court of a state in which a decision could be had, where the validity of a federal treaty or statute, or of a state statute under federal law, is drawn in question, or where a right is claimed under federal law.

5. 05

   The Supreme Court will not review a state court judgment that rests on an adequate and independent state ground, because a decision of the federal question would not change the result and would be an advisory opinion.

6. 06

   When a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and the adequacy and independence of any possible state ground is not clear from the face of the opinion, the Supreme Court will accept that the state court decided as it did because it believed federal law required it (Michigan v. Long).

7. 07

   If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate and independent state grounds, the Supreme Court will not review the decision.

8. 08

   Under Michigan v. Long, the Supreme Court will not look beyond the opinion under review, and it will not require state courts to reconsider cases to clarify the grounds of their decisions.

9. 09

   A state court may give a right greater protection under its own constitution than the federal Constitution requires, and a clear statement that the ruling rests on state law keeps the case out of the Supreme Court.

Use this attack sequence under time

Common wrong turns

• A state court's mention of state law does not by itself create an independent ground when the opinion relies mainly on federal law.
• The Supreme Court reviews the highest state court in which a decision could be had, not just the state supreme court by name.
• A statute that creates a suit to test the validity of a law without adverse interests is an advisory opinion.

Worked example

A state supreme court suppresses evidence and cites the Fourth Amendment and federal cases throughout, with a single passing citation to the state constitution. The state petitions for certiorari.

Practice this topic

Advisory opinions

Article III extends the judicial power to cases and controversies, including cases arising under the Constitution, the laws of the United States and treaties. In Muskrat v. United States, 219 U.S. 346 (1911), the Supreme Court held that Congress could not provide for a suit to be brought in the Court of Claims, with an appeal to the Supreme Court, to test the constitutionality of prior acts of Congress, because such a suit is not a case or controversy within the meaning of the Constitution.

Muskrat states that a case or controversy implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication, and that neither the legislative nor the executive branch can assign the judicial branch duties other than those that are properly judicial, to be performed in a judicial manner.

Adequate and independent state grounds

Title 28 U.S.C. section 1257(a) permits the Supreme Court to review by certiorari final judgments of the highest court of a state in which a decision could be had, where the validity of a treaty or federal statute is drawn in question, where the validity of a state statute is questioned as repugnant to federal law, or where a right is specially set up or claimed under federal law.

In Michigan v. Long, 463 U.S. 1032 (1983), the Court held that out of respect for the independence of state courts and the need to avoid advisory opinions, it will no longer look beyond the opinion under review or require state courts to clarify the grounds of their decisions. When a state decision fairly appears to rest primarily on federal law, or to be interwoven with it, and the adequacy and independence of any state ground is not clear from the face of the opinion, the Court will assume the state court decided as it did because it believed federal law required it, and if the opinion clearly and expressly states an alternative bona fide, adequate and independent state ground, the Court will not review the decision.

How the two limits fit together

Michigan v. Long ties the two doctrines together, since the Court explained that its approach rests on respect for the independence of state courts and on the need to avoid rendering advisory opinions. If a state judgment stands on an adequate and independent state ground, a Supreme Court ruling on the federal question could not change the outcome, so it would be advice about the law and not a decision of a case.

Muskrat adds that the Supreme Court has no veto power on legislation enacted by Congress and that from its earliest history it has declined to exercise powers other than those strictly judicial in nature, so a decision must resolve a real dispute between adverse parties.

Frequently asked questions