Looking toward the Future: A Presumption
The Burger Court emphasized avoiding unnecessary constitu- tional questions so as to steer around “head-on collisions” with the states.1 The Rehnquist Court has developed this into an art form, em- ploying avoidance techniques that skew civil liberties law to privilege the status quo and protect state and local governments or individuals with traditional harms. The Rehnquist Court operates with a presumption in favor of avoidance, urging federal courts to “pause” and ask if a constitu- tional ruling is really necessary. Playing It Safe demonstrates why that presumption should be reversed.
The Court has used many different forms of avoidance, for a variety of reasons, from 1970 to 2000. Avoidance strategies can be grouped along a spectrum of types, with differing implications for the dispute. For exam- ple, rejecting a case on standing grounds (as in the racial and environ- mental cases of chapters 2 and 3) removes certain types of claims com- pletely from the federal court system. A ruling that a dispute is not ripe or certifying an issue to a state court postpones federal court interpretation. Using the avoidance canon to construe a statute to avoid potential consti- tutional problems, as the Court suggested with Arizona’s English-Only law (chapter 1), can develop law at a quasi-constitutional level. Issuing a measured ruling (as in some sexual orientation and gender discrimina- tion cases covered in chapters 5 and 6) offers some development of con- stitutional law but limits the reach of a particular ruling as illuminating precedent.
The Court does not always avoid divisive controversies. It is easy to find exceptions to avoidance in each of the areas profiled in earlier chap- ters. During the term that ended in June 2000, for example, the Court is- sued significant substantive decisions on abortion, school prayer, and aid