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Notes -
It's our final SCOTUS day, and the surprisingly heated decision of Corner Post was released. There's a fair amount of juicy goodness in the decision, as well as the other decisions released today, but I specifically want to focus on the following lines in the dissent:
The Court, for its entire existence, has steadfastly refused to provide advisory opinions such as this comment. The Court does not weigh in on proposed statutes, let alone propose statutes itself, viewing it as a violation of both separation of powers and as outside the scope of the "case and controversy" requirement. Interpreting an amendment of a statute before the statute is even written goes strongly against the Court's norms and its powers. For all the discussion that overturning Chevron generated about moving power around between the branches, the Corner Post dissent is a shocking example of attempted judicial over-reach. Justices do not get to use the Court to urge Congress to enact legislation that meets the Justices' policy preferences.
However, an obscure APA case is a lot less interesting than the other decisions made today, and I doubt Corner Post's dissent will get much airtime with everything else going on. It's difficult to square with the liberal Justices' current discourse on other matters, but in a 6-3 I doubt that will matter much either.
The Court routinely offers advice to potential litigants in this manner directly in majority opinions. Elements of the opinion not necessary to reach its conclusions are usually referred to as "dicta" and are not considered legally binding (although of course the question of which elements of the opinion constitute dicta is itself often controversial).
Advisory opinions are forbidden insofar as the Court won't rule absent a case or controversy, which requires a plaintiff with standing.
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Eh... kinda. The Court does not give solely advisory opinions -- that's the steelman for the court punting as moot even in the face of voluntary cessation -- and famously refused and continues to refuse to answer when pressed for questions before a law is passed. And it supposedly won't comment about future cases in present ones.
((Modulo the various exceptions.))
But as to whether opinions can advise about future laws, well, Alito's concurrence in Cargill doesn't say that a machine gun ban would be constitutional, but it's not exactly subtle in encouraging Congress to pass a law, and that's just a recent one. When it comes to dicta, the rule against advisory opinions have always been held closer in theory than in the breach.
I think when it's a case on statutory construction, it's kind of obvious that Congress can step in and do whatever is needful. The dicta here seems more about placing the court's role as arbiter of statutory construction in the right scope.
That's different from dicta on a Constitutional matter (e.g. Scalia's dicta in Heller about longstanding law) which are more relevant tea leaves since the Court is the final arbiter of those matters.
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