We don’t have time machines. We don’t have access to the multiverse. We don’t have absolute knowledge. Instead, all we have is an approximate understanding of history and a hard-to-quench thirst to know what might have been or what could be: What if I had taken that job? What if the Nazis had won World War II? What if I could read people’s minds?
These hypotheticals have no real answer — we can only speculate to our heart’s content. But when it comes to comics, that’s not entirely true. There’s an entire line of comics — called What If for the Marvel Universe and Elseworlds for the DC Universe — where we get to see how key characters or events would play out if we were to change one or two story elements. For example, comics have explored what would have happened if Captain America had not vanished in World War II, if Gwen Stacy had lived, or if Superman had been raised by Thomas and Martha Wayne. What If-style comics are incredibly popular — so much so that Marvel announced it would launch an MCU-centric What If…? TV show on Disney+.
Notwithstanding the universal appeal of what-ifs and counterfactuals, when it comes to U.S. law, courts are actually prohibited from deciding what-if-style legal questions. The power of the federal judiciary is limited by Article III of the Constitution, which states that federal judicial power only extends to “cases” or “controversies.” Over the years, the Supreme Court has interpreted that language to mean that courts may only decide actual cases and may not issue hypothetical or advisory opinions.
This means that there is no way to know for sure how a court will decide a particular issue until the court decides that issue. This also means that there is no way to know how the law would have developed if key decisions were decided differently — for example, what civil rights law would look like if Brown v. Board of Education had gone the other way.
Comic books’ decades-long experience with what-if stories provides useful insights into why advisory opinions might be beneficial for the judiciary. In other words, What If comic books can help us consider, “What if courts issued What If opinions?” As it turns out, comic book history provides a strong, persuasive argument in favor of advisory opinions.
Advantage One: Building a More Desirable World
Story-crafting is hard, and it’s easy to understand how an author could make a less-than-optimal decision when deciding where to take a character. Next to every Green Goblin or Joker lies a Big Wheel or Calculator, and next to every Days of Future Past masterpiece lies a Sins Past (Gwen Stacy had a lurid one-night stand with the Green Goblin and mothered two children.) or Ultimatum. (Ultron is jealous of Quicksilver’s incestuous relationship with Scarlet Witch, so he assassinates Scarlet Witch. Magneto drowns the Earth in revenge, and Blob eats the Wasp.)
What-if stories provide authors with a tool to see how a story would turn out — and how it would be received — if a character had taken a different path. This, in turn, makes it possible for authors to find missed opportunities and make them a reality. For example, Marvel’s What If #10 asks, “What if Jane Foster had found the hammer of Thor?” That story played out well, and Marvel eventually made that scenario a reality in 2015’s The Mighty Thor and in the MCU’s upcoming Thor: Love and Thunder. More recently, in 2005, Marvel asked “What if General Ross had become the Hulk?” — a scenario that played out just three years later, when General Ross became the Red Hulk.
The net effect is that what-if issues can serve as a testing ground for ideas that otherwise would not see the light of day. The same thing holds true for advisory opinions, as they would give courts an opportunity to consider and decide issues they would not otherwise encounter. As it stands now, only a small fraction of legal disputes are actually resolved by the judiciary. The uncertainty and expense associated with judicial decision-making gives parties a strong incentive to avoid courts and to settle disputes amongst themselves.
Advisory opinions change that by allowing courts to consider issues in the abstract. This, in turn, would allow judges and litigants to test legal ideas to see how they would play out if they were actually pursued, as well as to determine whether particular ideas should be applied to real cases. In other words, advisory opinions would promote the creation and implementation of new and better legal ideas and arguments, just like What If and Elseworlds stories promote the creation of new and better characters and stories.
Advantage Two: More Depth
One of the criticisms commonly levied against superheroes is that they lack depth and are one-dimensional. The perceived lack of depth is largely attributable to formulaic writing. Superhero is on patrol; superhero sees villain; superhero defeats villain and saves friend/ally; repeat. While that formula, and various iterations of that formula, can be entertaining, it does not lend itself to character growth. When combined with the fact that superheroes generally do not age, the formula creates a perfect recipe for stagnant character development.
What If stories change the formula by putting characters in new situations and forcing them to grow. The best example of this is when authors play with character aging and show us what characters would look like at the end of their life. Stories like Whatever Happened to the Man of Tomorrow?, Old Man Logan, Old Man Quill, Future Imperfect, or the recent Spider-Man: Life Story allow authors to depict substantial character development, and they provide readers with an understanding of how characters would change if they weren’t forced to stay the same for purposes of continuity.
As another example, consider Injustice, which shows us what might happen if Joker killed Lois Lane and Superman’s unborn child. While most people think of Superman as a one-dimensional boy scout, Injustice shows that Superman is far more complex, and that, if the setting is right, Superman could be motivated to take over the world and kill anyone who stands in his way.
The same problem of depth plagues the judiciary. The judiciary generally adheres to precedents. That is, once an issue is decided, all future cases that present the same issue are (or at least should be) decided in the same way. Until a precedent is overturned, it is locked in place, in the same way that Silver Age comic book characters are locked in place until the occurrence of a key event or milestone.
Advisory opinions are the rough equivalent of an Old Man Judiciary for case precedents. They allow courts to consider hypothetical scenarios that test and probe the boundaries and limits of a particular precedent to see if the precedent would make sense in the context of an unexpected fact pattern or scenario. The key here is that advisory opinions need not conform to any real or even possible set of facts — just as What If stories need not conform to any established continuity.
It is in the outlandish and unexpected that we can truly come to understand the full scope and meaning of a legal principle. For example, consider copyright law. The Copyright Act makes it illegal to produce a permanent, or non-temporary, copy of a protected work. Suppose you had a series of hard drives that repeatedly copied a protected work, only to delete it a few seconds later, such that, at any given time, the work would be available across the series of hard drives, but no copy of the work would be stored permanently.
Granted, this scenario is outlandish (so much so that I got into trouble proposing it in law school!), but it makes clear that, in applying copyright law, courts should favor a functional approach over technical minutia — a lesson that has recently been lost on the courts in “real” cases. The point here is that advisory opinions can help courts stress test existing precedents in a way that “live” cases and controversies cannot.
There are several other advantages to advisory opinions that can be found in What If and Elseworlds comics: Because they are strictly hypothetical, they’re not as politically charged or controversial as precedential opinions (or traditional comics); lower stakes mean that judges (and authors) can use more creativity and experiment with different story forms (imagine an illustrated judicial decision or even — gasp — a decision written in comic form); non-traditional decisions (and stories) can garner greater public awareness and engagement (which, for comic books, amounts to increased sales).
We don’t have to think too hard to see what the world would be like if we had advisory opinions. While the Constitution prohibits federal courts from issuing advisory opinions, the prohibition does not apply to state governments or foreign countries. Even so, the states and countries that allow advisory opinions do not use them all that often, and they do not use them to explore the boundaries of the law or to consider outlandish, unusual, or fun scenarios.
Instead, advisory opinions are typically used to resolve contemplated disputes before they arise or to provide legal cover for a desired course of action. While those are surely helpful functions, it is clear that advisory opinions are not being used to their full potential.
But it doesn’t have to be that way. Hopefully, one day, Old Man Judiciary will join the ranks of Old Man Logan to reflect on its lifetime of hypothetical adventures, advisory opinions, and decades of legal growth. It’s sure to be a best seller and instant classic.