Definition
An opinion of judges is a formal legal advisory rendered by a court or its judges in response to a question of law posed by a legislative or executive authority, outside the context of a live case or controversy. The practice typically involves a coordinate branch of government submitting abstract legal questions to the highest court of a jurisdiction, which then answers those questions as a matter of constitutional or statutory guidance rather than as a resolution of disputed facts between adverse parties.
This term must be distinguished from a judicial opinion in the ordinary sense — the written reasoning a court issues when deciding a case. An opinion of judges in the specialized sense is advisory: no litigants, no controversy, no enforceable judgment.
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Common Confusion
OPINION OF JUDGES vs. JUDICIAL OPINION: The phrase "opinion of judges" in its technical, constitutional sense refers to advisory responses to governmental inquiries. A judicial opinion, by contrast, is the court's written reasoning in deciding an actual case or controversy. The two concepts operate in different procedural universes. Researchers encountering "opinion of judges" in historical state constitutional provisions or treatises should not read it as a synonym for ordinary case law.
OPINION OF JUDGES vs. ADVISORY OPINION: These terms substantially overlap, but the framing differs. "Advisory opinion" is the modern, broadly used term. "Opinion of judges" is an older, more formal expression tied specifically to constitutional provisions authorizing a legislature or governor to put questions to the court. Some state constitutions use the phrase verbatim; others use "advisory opinion." The substantive function is the same.
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Recognized Forms
/SUBTYPES
State constitutional opinions of judges: Several U.S. states — including Massachusetts, Maine, New Hampshire, Rhode Island, Colorado, and Florida — expressly authorize the governor or legislature to require the supreme court to render opinions on questions of law. These provisions are relics of English practice adapted into state constitutional frameworks. Each state's provision differs in who may request an opinion, what questions are permissible, and what precedential weight, if any, the opinion carries.
English practice — opinions to the Crown: Historically, English judges rendered opinions on legal matters at the request of the Crown or Parliament. Bouvier notes the last instance in England appears to have been in 1760. The practice survived in modified form in the House of Lords.
House of Lords opinions: The House of Lords retained the capacity to put legal questions to judges as part of its appellate and legislative function. McNaghten's Case (10 Cl. & F. 200, 1843) is the most cited example — the Lords posed questions to the judges on the law of criminal insanity, and the judges' answers became the foundational statement of the insanity defense in common law systems.
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Why It Matters in Research
The threshold issue for any researcher is jurisdiction. Under Article III of the U.S. Constitution, federal courts may not issue advisory opinions. The federal judiciary's authority is confined to actual cases and controversies. Any historical source that suggests federal courts once issued opinions of judges in the advisory sense, or that proposes they should, is describing a practice that has been constitutionally foreclosed since the earliest days of the republic — Chief Justice Jay declined to advise President Washington on treaty questions in 1793, cementing the no-advisory-opinion rule for the federal system.
State practice is the live research territory. Researchers working with state constitutional history, state supreme court records, or gubernatorial legal correspondence may encounter formal opinions of judges that carry no case caption, no parties, and no record below. These documents can be easy to misidentify or overlook in databases organized around adversarial proceedings. They may appear as appendices to legislative journals or as standalone documents filed with the secretary of state rather than in conventional law reporters.
The historical weight of these opinions varies dramatically. In Massachusetts, opinions of the justices have sometimes been treated as persuasive authority in later cases. In other states, the opinions are explicitly non-binding. Researchers should not assume precedential value without checking the jurisdiction's specific treatment.
The McNaghten connection is a research trap in the opposite direction: that case is universally cited as case law, but its doctrinal content originated as an advisory response by judges to questions posed by the House of Lords — not as the resolution of a contested appeal in the ordinary sense. Understanding this procedural origin matters for appreciating why the McNaghten rules are stated in the form of answered questions rather than as a conventional holding.
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Historical Dictionary Support
Bouvier's entry is brief but accurate in its key claims. It correctly identifies the English practice as largely extinct by 1760, notes the House of Lords exception (with McNaghten's Case as the leading illustration), and flags the categorical federal prohibition alongside the states that retain the practice. The reference to 126 Mass. 562 points to Massachusetts judicial records on the point — Massachusetts has one of the most developed state traditions of opinions of the justices, making it the natural anchor citation.
What Bouvier does not address is the question of precedential weight, the procedural mechanics by which requests are transmitted and answered, or the significant doctrinal evolution in individual states. Researchers relying solely on Bouvier will have an accurate orienting framework but will need to consult state-specific sources for any practical application.
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Jurisdictional Note
The practice is strictly a state-law phenomenon in the United States; no federal advisory opinion jurisdiction exists. Among states that authorize opinions of judges, the rules governing who may request them (governor only, legislature only, or either), what questions qualify, and whether answers bind future courts vary significantly. Massachusetts, New Hampshire, and Rhode Island have the most extensive historical records of such opinions.
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Encyclopedia Cross-Reference
Advisory Opinions and the Case-or-Controversy Requirement (The Law Mind Constitutional Law Encyclopedia) — essential for understanding the federal prohibition that defines the outer boundary of this practice.
Lay Opinion Testimony — Rule 701 (The Law Mind Civil Procedure & Evidence Encyclopedia) — relevant by contrast: opinion evidence at trial operates under entirely different rules and should not be confused with formal opinions of judges in the advisory sense.
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