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If there is one thing that is clear about the authority of the federal courts, it is the simple proposition that they can act only on real cases and controversies. Put differently, they are not empowered to render “advisory opinions” and offer “nonbinding interpretation(s) of law.”

As law professor Christian Burset notes, “The prohibition against advisory opinions is fundamental to our understanding of federal judicial power.” That is why the Supreme Court has, according to the research company EBSCO, “maintained a clear stance against issuing advisory opinions.”

Tell that to Judge Joshua Divine of the U.S. District Court for the Eastern District of Missouri. Last week, he took the extraordinary step of issuing an opinion to “explain why, contrary to common belief, Supreme Court precedent does not prohibit capital punishment for nonhomicide sexual offenses against children.”

He titled his statement a “sentencing opinion,” but neither the prosecution nor the defense had asked for it. Moreover, the statutory maximum for child rape in Missouri is 20 years in prison.

In March, the defendant, Anthony Moore, pleaded guilty to receiving child pornography. He also allegedly admitted to sexually assaulting a 13-year-old girl whose pictures he found while scrolling on his phone.

Divine did not say why he felt compelled to state his beliefs about permissible punishments. However, he cautioned that while the prosecutor’s decision not “to press heavier charges here … may reflect their view that this offense, though severe, was not as egregious as other sexual offenses,” that does not mean that other prosecutors and legislators are bound by Kennedy v.........

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