From a prudential point of view, I am not much of a fan of the strong version of the advisory opinion doctrine. When one of the other branches is unsure how the Constitution applies to a concrete set of facts (concrete enough to create a record at least as detailed as one finds on a motion to dismiss) that can be resolved by a ruling on the underlying law, that is a proper inquiry for the courts. That, however, is not the law. Instead, we have tortured reasoning on standing, on mootness, on "case or controversy," on abstention, and on "political questions" that sharply limits the procedural context in which our courts have authority to make a decision. Objectively, a court is being "activist" when it reaches outside the acceptable context for judicial decisionmaking. Some would argue that certain subject matter is inherently outside that context; but that is not an objective test. Instead, the objective test is much, much simpler: Within the meaning of Article III, is this the kind of matter that a court may consider at all? If it is not, but a court nonetheless chooses to decide the matter, the court is activist.
All of that said, one can make a strong case that a weaker form of an advisory opinion doctrine would be appropriate in Cheney. However, that is not the law as the courts have established it for themselves; and that is precisely why a decision on the merits in Cheney would have been "activist" regardless of its substance. Even a merits-based decision that deferred to the executive would have been activist. ("Activism" is more than just "liberal" or "leftist.") To reach the merits in Cheney would require changing fundamental rules under which the courts function; and the procedural problems I alluded to in this morning's entry make it very clear that Cheney is the wrong vehicle to do so, no matter how compelling one might see the rationale for such changes.
This is the whole point of the rule of law. We don't change our rules to encompass a particular result in a particular matter in the face of that matter. That way lies unfettered discretion not just for the courts, but for every other government official. This is not some abstract "slippery slope" argument; it is an argument grounded in the history of Western government. Instead, when enough of those matters accrete, we begin considering whether our rules must change to account for them. Surowitz is an excellent example of this; one cannot reasonably say that the particular rules that Surowitz altered were clear in the first place, let alone the cause of a great number of previous disputes! So, too, did Northern Pipeline, which was decided about as quickly after the adoption of the Bankruptcy Code as one can reasonably expect in a multitiered appellate system. On the other hand, sometimes that accretion can be glacial, as in Redmond (confirming that there is a psychotherapist-patient privilege in federal court).
So I don't see Cheney as it was decided this Term as "expanding" executive power. I see it as refusing to expand judicial power on an inadequate factual record. And, however much I think that the Vice President's committee was at best imprudent in its interaction with energy-industry figures (and quite probably worse); and however much I dislike attempting to characterize such "silent lobbying" as part of a privileged "deliberative process;" and however much I suspect personal chicanery by at least some senior staff—on the record presented I can't justify a judicial intervention to either enshrine a privilege or negate it.