Courts frequently go out of their way to avoid deciding im- portant and controversial constitutional issues. The U.S. Supreme Court (the “Court” or “Supreme Court”) does so quite frequently, using a vari- ety of strategies to dodge contentious issues. This book describes some of those “avoidance” strategies and the costs they impose on litigants and others seeking constitutional interpretation. Judges sometimes lean on avoidance strategies to protect courts from charges of judicial activism. This book argues that the Court has often invoked avoidance techniques in what it calls “socially sensitive” cases, when litigants challenge such things as racial and ethnic discrimination, gender inequalities, abortion restrictions, sexual orientation discrimination, or environmental abuses. In such cases, courts should provide a check on the more politically re- sponsive branches of government. Litigants must sometimes bring issues to courts precisely because legislative or executive officials have ducked a controversy for fear of retaliation at the polls. When judges avoid judicial review of the most politically and socially controversial issues, they evade their constitutional responsibility.
Moreover, when courts only provide the check of judicial review selec- tively, they do not provide justice evenhandedly. The Court has not in- voked the avoidance doctrine consistently. It alternatively employs—or ignores—avoidance to achieve particular substantive outcomes. The Rehnquist Court has ignored avoidance dictates in order to strengthen the protection afforded states under federalism, while it has used avoid- ance concerns to bar lawsuits claiming redress for widely shared discrim- ination and environmental degradation. In many cases, the Court has re- fused to expand the Warren Court’s constitutional vision and has been deferential to state courts, even when a state court’s construction of state law might conflict with a federal constitutional claim. But in the lawsuits challenging the Florida vote count in the 2000 presidential election, the states’ rights majority readily disregarded the usual deference techniques.