On this day in 1793, the Supreme Court sent a letter to President George Washington denying his request for the Court’s opinion regarding certain legal issues pertaining to the nation’s relations with France. This letter set a critical precedent for the newly created Court, which the justices have never abandoned: the Court will only issue opinions in cases involving legal disputes between adversarial parties; it will not issue “advisory” opinions.
In requesting legal guidance from the Court, President Washington was following a long line of Anglo-American precedent. Judges of the highest courts in England would offer advisory opinions when the monarch or the House of Lords requested they do so. In America, several state constitutions gave the governor or legislature the right to seek advisory opinions from their states’ supreme courts. Prior to the 1793 letter, Chief Justice John Jay have given Washington his opinion on various legal issues.
Thus there was nothing particularly unusual when, on July 18, 1793, Secretary of State Thomas Jefferson wrote a letter to the Supreme Court in which he explained that the President would like to get the Court’s views on pressing legal issues related to international affairs. The French were at war with Great Britain and Spain, rapidly increased the number and complexity of questions about what actions by the United States abided by its Proclamation of Neutrality. The opinion of the justices “would secure us against errors dangerous to the peace of the US. and their authority ensure the respect of all parties.” He enclosed a list of 29 questions. The first question was: “Do the treaties between the U.S. & France give to France or her citizens a right, when at war with a power with whom the U.S. are at peace, to fit out originally in & from the ports of the U.S., vessels armed for war, with or without commission?”
On July 20, four of the six justices responded that they would need more time to decide the matter. Two of the justices were out of town at the time, and the other were reluctant to decide such an important matter without the full Court. When the Court was able to convene five of its six members, the justices drafted their now famous letter. It read as follows:
We have considered the previous Question stated in a Letter written to us by your Direction, by the Secretary of State, on the 18th of last month.
The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.
We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the United States. We have the Honor to be, with perfect Respect, Sir, your most obedient and most h’ble servants”