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86 Tul. L. Rev. 1289 (2011-2012)

handle is hein.journals/tulr86 and id is 1301 raw text is: Advisory Adjudication Girardeau A. Spann* The Suprme Court decision in Camreta v. Greene is revealing. The Court irst issues an opinion authorzing appeals by prevaihng parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional clai in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Courth decision, therefore, has the paradoxical effect of both hononng and violating the Article III Iunsdictional limitation on advisory opinions at the same tune The Camreta paradox illustrates a problem that makes our current conception ofjudicial review mcoherent We insist that the Supreme Court avoid separation of powems problems by confining itself to the retrospective adjudicatory activities envisioned by the Marbury v. Madison dispute-resolution model of judicial review But what we really want the Court to do is participate in the prospective formulation ofgovemrnmentalpolicy as ifit were part ofa tricameral legislative process. These dual conceptions ofjudicial review reflect a tension inherent in liberalism itself We want both to advance our own self-interests in an unflattering pluralist political process, but simultaneously we wish to think of ourselves as other-regarding adherents to lofier civic republican virtue We ask the Supreme Court to mediate this tension for us by making our liberal political victones look as if they are rooted in deeper communitanan pnciples. But this mediation can be successful only to the extent that the Court can mask for us the underlyig incoherence of the judicial review function that we ask the Court to perform, In Camreta, this incoherence is so close to the surface that, hopefully we will be forced to confront it. Without the camouflage that we ask judicil review to provide for our baser instincts, perhaps we will come to treat each other less harshly and with more empathy I. INTRODUCTION......................................... 1290 1I. ADVISORY OPINIONS ........................ .....1 294 A. Camreta Paradox .................... .....1 295 1. Factual Context .................. .....1 295 2. Lower Courts..... ............. ...... 1296 3. Supreme Court................... 299 a. Prospective Guidance .......... .....1301 b. Nonappealing Party ........... .....1303 c. Camreta Paradox .......................1307 B. SeeAlso ........................... .... 1316 III. JUDICIAL R VIEw ..............................1324 * 0 2012 Girardeau A. Spann. Professor of Law, Georgetown University Law Center. I would like to thank Richard Diamond, Irv Gomstein, Lisa Heinzerling, and Marty Lederman for their help in developing the ideas expressed in this Article. I would especially like to thank Mike Seidman for encouraging me to write this Article, and for trying to explain to me what my thesis should be. Research for this Article was supported by a grant from the Georgetown University Law Center. 1289

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