“The Doctrine of One Last Chance”

Richard Re has posted this must-read short essay on SSRN (Green Bag).

Here is the abstract:

Constitutional avoidance is an old idea, but the Roberts Court has given it a new twist. Instead of avoiding constitutional questions whenever possible, recent Supreme Court majorities have tended to engage in avoidance just once before issuing disruptive decisions. For example, the Roberts Court initially ducked constitutional challenges to central pillars of the Bipartisan Campaign Reform Act and the Voting Rights Act. But when those measures came before the Court for a second time, they were both struck down as unconstitutional, despite their importance and bipartisan support. A similar pattern of limited deferral may be visible in other recent cases, as the Roberts Court has taken a pass on its first opportunities to strike at the Affordable Care Act, affirmative action in higher education, and same-sex marriage laws.

This emerging use of constitutional avoidance might be called “the doctrine of one last chance.” Under this doctrine, the Court must signal its readiness to impose major disruptions before actually doing so. Put more colorfully, the doctrine of one last chance is avoidance on steroids, but with an expiration date. The result is a practical rule of judicial decision-making — an attempt not just to extol the dueling virtues of judicial action and restraint, but to balance them. And the balance is attractive. Here as elsewhere, there is good reason to afford notice and postpone decision before causing massive and potentially unexpected disruptions. Still, the doctrine should give us pause: by facilitating major legal change, the doctrine of one last chance converts a cornerstone principle of judicial restraint into a playbook for judicial action.

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