Avoiding Constitutional Cases

American Politics Research, 39(3): 483-511 (2011)

34 Pages Posted: 27 Jan 2013 Last revised: 7 Feb 2013

Greg Goelzhauser

Utah State University - Department of Political Science

Date Written: 2011

Abstract

Why does the Supreme Court avoid deciding cases it accepts for review? In this article, I contend that the Court uses procedural access doctrines such as standing, ripeness, and mootness to sidestep constitutional cases when confronted with certain internal and external pressures. Using data from 1946-2001, the results suggest that the Court utilizes procedural tools to dismiss constitutional cases when preference heterogeneity on the Court increases and when the justices are confronted with issues about which groups feel strongly and are deeply divided. Although the Court does not appear to be influenced by the threat of political opposition, it is more reluctant to resolve disputes when members of Congress file an amicus brief. The results offer a first glimpse into how often the Court invokes the “passive virtues.” They also have implications for our understanding of agenda setting, decision-making in access cases, and normative constitutional theory.

Keywords: supreme court, justiciability, standing, avoidance, passive virtues

JEL Classification: H10

Suggested Citation

Goelzhauser, Greg, Avoiding Constitutional Cases (2011). American Politics Research, 39(3): 483-511 (2011). Available at SSRN: https://ssrn.com/abstract=2207116

Greg Goelzhauser (Contact Author)

Utah State University - Department of Political Science ( email )

0725 University Blvd.
Logan, UT 84322-0725
United States

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