Avoidance Doctrine

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The avoidance doctrine is a group of judicially created techniques employed to avoid constitutional interpretation. The Supreme Court developed this special approach to judicial review to restrain federal courts from developing constitutional law unnecessarily. The avoidance theme dates back to the earliest days of the Court, when the Court identified the Article III judicial review power. Justice louis d. brandeis set out the modern avoidance doctrine in ashwander v. tennessee valley authority (1936). Avoidance is predicated on separation of powers concerns; federalism concerns; the continued political viability of courts staffed with unelected, life-tenured judges; the final and delicate nature of judicial review; and the paramount importance of constitutional adjudication.

The avoidance doctrine consists of a series of seven rules that are closely related to other restraints on federal courts. Several of the rules mirror the constitutional and prudential aspects of the Court's heightened modern justiciability standards. One important avoidance rule encourages courts to look for nonconstitutional grounds to dispose of a lawsuit, even if jurisdiction exists.

Obviously, federal courts do render constitutional decisions. When they do so, another avoidance technique urges them to rule no more broadly than the precise facts require. Avoidance suggests using measured constitutional steps and narrowly framed relief. Avoidance cautions against general legal advice or broad rules to guide future conduct.

The Court's use of the avoidance doctrine has been inconsistent and at times politically driven. For example, Brandeis and Justice felix frankfurter deemed the avoidance doctrine essential to promote deference to the new deal Congress and executive branch. These Justices were responding to the judicial activism of the conservative Court during the Lochner era, which frequently struck down state and federal legislative and executive programs. One year prior to the court-packing plan of President franklin d. roosevelt, Brandeis in Ashwander warned that fallible judges should use judicial review sparingly. As the liberal majority of the Warren Court recognized new constitutional rights, conservative judges and scholars praised avoidance as a foundational rule of judicial restraint.

Although avoidance techniques prove sound on occasion, sometimes avoidance fails to protect constitutional rights sufficiently. Avoidance can engender great delay and increased expense for securing rights. Narrowed rulings provide little guidance, so that constitutional rights are not protected uniformly. Some avoidance measures actually fail to promote deference to other decisionmakers by disguising the role of courts in interpreting the Constitution.

Additionally, the avoidance doctrine is a flexible approach to judicial review. Judges must determine when reaching a constitutional question is necessary. Courts invoke avoidance techniques more frequently in cases involving sensitive social issues such as racial discrimination or abortion, and in cases in which the Court's countermajoritarian role is an important protection against the more politically responsive areas of government. For example, the avoidance doctrine counsels that judges should interpret statutes to avoid constitutional problems. During the era of mccarthyism the Court refused to clearly define first amendment rights. Instead, it eventually used the avoidance doctrine to interpret narrowly a congressional act prohibiting sedition, concluding that Congress did not intend to prohibit mere words of Communist proponents. Although this avoided a direct collision with Congress, the Court was not deferential to congressional intent. Moreover, it did not offer speech constitutional protection, thus leaving open possibilities for future political targeting of unpopular speakers.

To protect themselves from charges of antidemocratic judicial activism, federal judges must take the avoidance doctrine seriously. But avoidance entails costs and it should be scrutinized carefully. When federal judges fail to exercise the power of judicial review in politically sensitive cases, they can abdicate their constitutional responsibility to protect enduring rights against temporal repressive majorities. And when judges use avoidance techniques inconsistently, they do not provide justice evenhandedly.

Lisa A. Kloppenberg


Bickel, Alexander M. 1986 The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd. ed. New Haven, Conn.: Yale University Press.

Ginsburg, Ruth Bader 1992 Speaking in a Judicial Voice. New York University Law Review 67:1185–1209.

Gunther, Gerald 1964 The Subtle Vices of the "Passive Virtues"—A Comment on Principle and Expediency in Judicial Review. Columbia Law Review 64:1–25.

Kloppenberg, Lisa A. 1996 Avoiding Serious Constitutional Doubts: The Supreme Court's Construction of Statutes Raising Free Speech Concerns. UC Davis Law Review 30:1–93.

Schauer, Frederick 1996 Ashwander Revisited. Supreme Court Review 1995:71–98.