Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. Professor Katyal contends that the Court wields a fourth power: advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normative justification for the practice. Professor Katyal breaks down advicegiving into several categories and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for the coordinate branches while also serving the goals of federalism, enhancing political accountability, and encouraging judicial candor. In particular, Professor Katyal explains how advicegiving can become an alternative to aggressive forms of judicial review while simultaneously maintaining constitutional fidelity
50 Stan. L. Rev. 1709
Scholarly Commons Citation
Katyal, Neal K., "Judges as Advicegivers" (1998). Georgetown Law Faculty Publications and Other Works. 1732.