May Federal Courts Answer Questions When Not Deciding Cases?

Benjamin B. Johnson*

Conventional wisdom says that Article III’s case-or-controversy requirement prevents federal courts from answering legal questions when they are not deciding cases.  This is only partially correct.  This Article shows conditions under which a federal court may answer questions even when not deciding a case.  To do so, it traces the appellate power back to its origins in English common law courts and through the early American judiciary.  For centuries, common law judges have answered questions sent to them by lower courts when doing so would help those lower courts to decide pending cases.  In England, the “case stated” procedure facilitated this; in the United States, the Judiciary Act of 1802 created the certificate of division that allowed circuit courts to send questions to the Supreme Court.  These examples provide strong evidence that the Article III judicial power, as understood in 1789, included the ability to answer legal questions even when not deciding cases, at least when two conditions jointly hold.  First, the answer must help a different federal court decide a pending case.  Second, the judges may answer only the questions asked; they cannot choose different questions they would rather answer, even if such questions are part of the case.

This history and theory have immediate implications for the current Supreme Court’s appellate docket.  By rule, the Court limits review to preselected questions, and the Justices frequently add or subtract questions to manipulate the docket so that the Justices may address the issues that interest them, leaving other questions that are integral to the case unanswered.  Thus, the Court frequently answers questions without deciding the larger cases on the merits.  This raises the question of whether Justices may give these answers and remain within Article III’s limits on the judicial power.

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© 2025 Benjamin B. Johnson.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, University of Florida, Levin College of Law.  I am grateful to many for helpful comments and conversations that informed this Article, especially Will Baude, Samuel Bray, Aaron-Andrew P. Bruhl, Christian Burset, Charlie Capps, Tara Leigh Grove, Christopher Hampson, John Harrison, Lyrissa Lidsky, Harold Hongju Koh, Jud Mathews, Merritt McAlister, Eric Segall, Mark Storslee, Logan Strother, and Keith Whittington.  Thank you to Austin Dillon and John Scoggins for able research assistance.