Passive Avoidance

Abstract

In its nascent years, the Roberts Court quickly developed a reputation — and drew sharp criticism — for using the canon of constitutional avoidance to rewrite statutes in several controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn — quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent terms — doing significant work in only one majority opinion since 2012.

This paper examines the Roberts Court’s recent shift in approach to the avoidance canon. It departs from the conventional wisdom about the Roberts Court and the avoidance canon in several important ways. First, it posits that the conventional view about the Roberts Court’s aggressive use of the avoidance canon may itself have contributed to the Court’s shift away from invoking the avoidance canon in recent cases — as the Court has ratcheted down its use of the canon in response to commentators’ attacks against its early term avoidance reliance. Second, the paper argues that the recent Roberts Court has adopted a “passive” rather than aggressive form of avoidance, in which it effectively avoids deciding controversial, unresolved constitutional questions — but without invoking avoidance and without openly admitting to rewriting or straining the statute’s text. Third, and perhaps most importantly, the paper uncovers several new tools of “passive avoidance” that the Court has employed to do the work previously performed by the avoidance canon. In the end, it posits that passive avoidance may actually be a good thing — and the truest form of constitutional avoidance.