In 2020, South Dakota Gov. Kristi Noem asked the state’s supreme court for an advisory opinion on a conflict of interest provision in the state constitution. The court obliged, opining that the provision, which bars legislators from having an interest “directly or indirectly” in contracts with the state, prohibited them from accepting federal Covid-19 relief funds.
Noem, with the support of legislative leaders, is now requesting a second advisory opinion, about what constitutes “indirect” contracts by legislators. Many hold other jobs while serving in the state’s part-time legislature. A broad reading of the constitutional provision has the potential to implicate teacher salaries, retirement funds, and more, they argue.
For readers more familiar with the federal courts, South Dakota’s use of advisory opinions — judicial guidance on a legal issue offered outside an actual case — may be surprising. The U.S. Supreme Court steadfastly refuses to issue advisory opinions. This goes back all the way to 1793, when President George Washington asked the justices to come before his cabinet and answer legal questions related to the government’s neutrality in a war between France and Britain. Chief Justice John Jay wrote on behalf of the justices to decline the request, citing the separation of powers (and conveniently avoiding a hot political controversy).
Over the years, this aversion to offering advisory opinions has hardened into a foundational principle for federal courts. Using a label perhaps better fitting a death metal band, Justice Felix Frankfurter memorably warned against advisory opinions as “ghosts that slay,” unrooted in a real controversy and aggrandizing the judiciary at the cost of popular government.
Yet, as in many arenas, states do things differently. Currently 11 states, including South Dakota, authorize their state supreme courts to provide advisory opinions to the executive branch (and in some states also to the legislative branch) in at least some circumstances.