Early Supreme Court Justices' Most Significant Opinion

Abstract

The early Supreme Court Justices decided many cases before Marbury v. Madison, but only one of their earlier opinions has enduring significance. In 1793, President George Washington and his Cabinet were embroiled in the first serious foreign affairs crisis under the Constitution and desperately needed legal advice on a number of complex legal issues. The President formally asked the Supreme Court for advice, and the Justices responded with a written opinion declining to help. Today, more than two hundred years later, the Justices' opinion is generally considered as the source of an absolute rule that federal courts may not render advisory opinions. In a leading case, the Supreme Court explained that the "rule against advisory opinions was established as early as 1793," and the Court cited the Justices' refusal for this proposition. The present article tells the story of the Justices' refusal to advise President Washington and suggests the story's relevance to modern practice.