The Rise of Unnecessary Constitutional Rulings

Abstract:     
One of the oldest principles of constitutional adjudication is that federal courts will decide only those constitutional questions that are necessary to the resolution of cases or controversies. This principle provides a key justification for judicial review and underlies much of the law of justiciability. Yet in recent years, the Supreme Court has systematically departed from this principle by authorizing (and in some cases, ordering) lower federal courts to decide constitutional questions even when doing so is clearly not necessary to the resolution of a case.

This Article provides the first account of this troubling development and examines it from several perspectives. The Article begins by arguing that the rise of unnecessary constitutional rulings is both part of a larger trend toward judicial supremacy and the result of pressures specific to each of the areas in which the Court has authorized such rulings. It then considers whether the Court's embrace of unnecessary constitutional rulings in four areas - qualified immunity, habeas corpus, harmless error, and Fourth Amendment good faith cases - can be squared with Article III's ban on advisory opinions, which prohibits federal courts from deciding legal questions that will have no effect on a dispute between adverse litigants. Finally, the Article considers whether the Court's recent approach, even if consistent with Article III, is good policy. Although several scholars have advocated unnecessary constitutional rulings in qualified immunity cases as a way to ensure the evolution of new rights, the Article shows that these rulings are far more likely to retard, than promote, the development of constitutional rights.

Number of Pages in PDF File: 102

Keywords: avoidance, advisory opinions, Article III, justiciability, qualified immunity, unnecessary constitutional rulings

Accepted Paper Series