Constitutional Avoidance and Anti-Avoidance by the Roberts Court

Abstract:     
At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of “constitutional avoidance.” That doctrine (also known as the “avoidance canon”) encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question. In NAMUDNO, however, the Court - without objection from single Justice - embraced a manifestly implausible statutory interpretation to avoid the constitutional question.

A week after NAMUDNO issued, the Court announced it would not be deciding a campaign finance case, Citizens United v. Federal Election Commission, by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the Court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question. It remains to be seen whether the Court will actually decide the constitutional question when issues its decision. But the reargument order itself embraced the anti-avoidance principle: the Court went out of its way to make a thorny constitutional question more prominent by scheduling briefing and argument on it despite a plausible statutory escape hatch.

What explains the divergent approaches in the two cases, and what does the divergence tell us about the Roberts Court? In this Article, I identify the evidence supporting three competing explanations for the Court’s actions, ranging from the most charitable to least charitable reading of the Court’s motives.

First, the fruitful dialogue explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that full-blown constitutional pronouncement would harm its legitimacy. Third, the political calculus explanation posits that the Court uses constitutional avoidance and similar doctrines to soften public and Congressional resistance as the Court’s movement of the law in its preferred policy direction.

While it is impossible to know which of these explanations is correct, the developments of the October 2008 term suggest Court watchers should continue to keep an eye on use of the constitutional avoidance doctrine for broader clues about the Roberts Court.

Whether intended or not, the use of constitutional avoidance and anti-avoidance allows the Court to control the speed and intensity of constitutional and policy change.

Accepted Paper Series