JUDGES AS ADVICEGIVERS

Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power; striking down acts for unconstitutionality, le gitimating them, or employing the passive virtues. Professor Katyal co ntends that the Court wields a fourth power: advicegiving. Advicegivin g occurs when judges recommend, but do not mandate, a particular cours e of action based on a concern for rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and thi s 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 engend er a colloquy that maximizes respect for the coordinate branches while also sewing the goals of federalism, enhancing political accountabili ty, and encouraging judicial candor. In particular, Professor Katyal e xplains how advicegiving can become an alternative to aggressive forms of judicial review while simultaneously maintaining constitutional fi delity.