Constitutional avoidance and anti-avoidance by the Roberts court

Supreme Court Review

Volumn 2009, Issue , 2009, Pages 181-223

  Hasen, Richard L ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 84859065279     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/653648     Document Type: Review

References (206)

1. 129 S Ct 2504 (2009).
2. See Part II.A (describing doctrine).
3. See Part III.A.
4. 129 S Ct 2893 (2009).
5. Id. ("This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v Michigan Chamber of Commerce, 494 U.S. 652 (1990)
6. and the part of McConnell v Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. s§ 441b?").
7. The discovery of the anti-avoidance tool lends some credence to Llewellyn's complaint that every canon of construction has a contrary "counter-canon." Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand L Rev (1950).
8. 129 S Ct 1231 (2009).
9. 129 S Ct 2658 (2009).
10. I do not intend here to give a full-blown examination to the avoidance canon. I rather sketch the main arguments to provide relevant context for the remainder of this article. This section appears in similar form in Richard L. Hasen, The Democracy Canon, 62 Stan L Rev 69 (2009).
11. James J. Brudney and Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand L Rev 1, 13 (2005).
12. 12William N. Eskridge, Jr., Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy app. B32 (West, 4th ed 2007).
13. Brudney and Ditslear, 58 Vand L Rev at 12 (cited in note 11). One of the most important language canons is the expressio unius canon, "the expression of one thing suggests the exclusion of others."
14. Eskridge, Frickey, and Garrett, Cases and Materials on Legislation at app. B19 (cited in note 12) ("expressio unius est exclusio alterius"). Justice Scalia gives this example, "What [the expressio unius canon] means is this: If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay. The inclusion of the one class is an implicit exclusion of the other."
15. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 25 (Princeton, 1997).
16. Eskridge, Frickey, and Garrett, Cases and Materials on Legislation at 945(cited in note 12) (describing "intellectual warfare" over the canons).
17. William N. Eskridge, Jr., and Philip P. Frickey, The Supreme Court, 1993 Term Foreword: Law as Equilibrium, 108 Harv L Rev 26, 66 (1994).
18. Eskridge, Frickey, and Garrett, Cases and Materials on Legislation at 48 (cited in note 12).
19. Scalia, A Matter of Interpretation at 27 (cited in note 14).
20. Id at 20 n 22. See also Part II.B (discussing Justice Scalia's opinions concerning the avoidance canon).
21. Eskridge Frickey and Garrett Cases and Materials on Legislation at app, B29 in note 12). The next section describes the mechanics of the canon in greater detail.
22. See, for example, Rust v Sullivan, 500 US 173, 191 (1991) ("This canon is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations.")
23. Clark v Martinez, 543 US 371, 382 (2005) ("The canon is thus a means of giving effect to congressional intent, not of subverting it.").
24. Eskridge, Frickey, and Garrett, Cases and Materials on Legislation at 918 (cited in note 12).
25. 29William G. Eskridge, Jr., Dynamic Statutory Interpretation 286 (Harvard, 1994).
26. Eskridge, Frickey, and Garrett, Cases and Materials on Legislation at 918 (cited in note 12).
27. See Neal Devins, Constitutional Avoidance and the Roberts Court, 32 U Dayton L Rev 339, 340 (2007) ("During the 1956-1957 term of the Warren Court, twelve cases were decided involving Communists. The Court ruled against the government in every case, though never on constitutional grounds.").
28. Id, citing Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 Cal L Rev 397 (2005).
29. Frederick Schauer, Ashwander Revisited, 1995Supreme Court Review 71, 74
30. see also id at 92-93 ("there is no evidence whatsoever that members of Congress are risk-averse about the possibility that legislation they believe to be wise policy will be invalidated by the courts. On the contrary, given the essentially political nature of the job of legislating, and given that the American political system does not penalize legislators for voting for good (in the eyes of the voters) policies that are determined by the courts to be unconstitutional, one would expect members of Congress to be anything but risk-averse. One would expect them to err on the side of assuming constitutionality under conditions of uncertainty about what the courts are likely to do."); Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex L Rev 1549, 1581 (2000) (arguing that the canon might actually undermine congressional intent: "a holding that constitutional doubts compel a narrow statutory construction has a 'go ahead, make my day' quality to it, and Congress might reasonably conclude that enactment of the broader reading would only result in invalidation on the merits").
31. Henry Friendly, Benchmarks 211 (Chicago, 1967). Judge Friendly remarked that challenging the avoidance canon "is rather like challenging the HolyWrit," id, but he worried that wide use of the rule would become one of "evisceration and tergiversation." Id at 212
32. see also Lisa Kloppenberg, Avoiding Constitutional Questions, 35BC L Rev 1003 (1994).
33. Frickey, 93 Cal L Rev at 402 (cited in note 33).
34. Young, 78 Tex L Rev at 1585 (cited in note 34).
35. In Jewish religious tradition, the oral law provided additional rules to supplement the written rules in the Torah and to make sure that those written rules were not violated. "The rabbis used the metaphor of a fence around the Torah as a means of protecting the essence of Torah in the midst of the proliferation of new demands." Leonard Kravitz and Kerry M. Olitzky, eds and trans, Perke Avot: A Modern Commentary on Jewish Ethics 2 (URJ Press, 1993).
36. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum L Rev 1189, 1217 (2006)
37. see also United States v Marshall, 908 F2d 1312, 1318 (7th Cir 1990) (Easterbrook) ("The canon about avoiding constitutional decisions, in particular, must be used with care, for it is closer cousin to invalidation than to interpretation. It is a way to enforce the constitutional penumbra, and therefore an aspect of constitutional law proper.").
38. Adrian Vermeule, Saving Constructions, 85Geor getown L J 1945, 1949 (1997).
39. Morrison, 106 Colum L Rev at 1203 (cited in note 39)
40. see also John Nagle, Delaware & Hudson Revisited, 72 Notre Dame L Rev 1495(1997) (tracing history of "doubts" canon in detail).
41. Almendarez-Torres v United States, 523 US 224, 270 (1998) (Scalia, J, dissenting) (emphasis added and citations omitted). Though Justice Scalia wrote this as part of his dissenting opinion, on this point, the majority agreed: "[For the canon to apply, t]he statute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a 'fair' one." Id at 238. The majority and dissent disagreed in the Almendarez-Torres case over whether the statutory language at issue pointed "significantly in one direction," id, and over whether there was "grave[] doubt" about the constitutionality of the statute under one of the interpretations. Id at 239.
42. Clark v Martinez, 543 US 371, 382 (2005) (emphasis added).
43. Frickey, 93 Cal L Rev at 460-61 (cited in note 33).
44. 543 US 371 (2005).
45. 8 USC s§ 1231(a)(1)(A).
46. 8 USC s§ 1231(a)(6).
47. Clark, 543 US at 372.
48. Zadvydas v Davis, 533 US 678 (2001).
49. Clark, 543 US at 380-81.
50. Gonzales v Oregon, 546 US 243, 291-92 (2006) (Scalia, J, dissenting) (arguing that the canon did not apply to Attorney General directive on assisted suicide)
51. Kansas v Marsh, 548 US 163, 169 (2006) (describing Kansas Supreme Court's use of the doctrine)
52. Hamdan v Rumsfeld, 548 US 557, 584 n 15 (2006) (declining to decide "the manner in which the canon of constitutional avoidance should affect subsequent interpretation of the" Detainee Treatment Act)
53. Rita v United States, 551 US 338 (2007) (Scalia, J, dissenting) (criticizing majority for failure to follow Clark v Martinez rule)
54. Office of Senator Mark Dayton v Hanson, 550 US 511, 514 (2007) (Court unanimously following Clark for "our established practice of interpreting statutes to avoid constitutional difficulties")
55. Gonzales v Carhart, 5 5 0US 124, 153-54 (2007) (relying on avoidance canon to interpret federal abortion statute so as not to apply to certain abortion procedures)
56. Gonzalez v United States, 128 S Ct 1765, 1771 (2008) (declining to apply avoidance canon because there was no serious constitutional doubt raised by one of the interpretations)
57. Boumediene v Bush, 128 S Ct 2229, 2271-72 (2008) (declining to apply canon when the text and purpose require a contrary interpretation)
58. Pearson v Callahan, 129 S Ct 808 821 (2008)
59. (unanimous Court endorsing Justice Brandeis's statement in Ashwander v TVA, 297 US 288, 347 (1936), thati "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of")
60. Bartlett v Strickland, 129 S Ct 1231, 1247-48 (2008) (relying on avoidance canon in declining to read section 2 of the Voting Rights Act to allow influence district claims)
61. Hawaii v Office of Hawaiian Affairs, 129 S Ct 1436, 1445(2008) (applying Clark's avoidance statement to congressional resolution concerning apology to Hawaii)
62. Federal Communications Comm'n v Fox Television Stations, Inc., 129 S Ct 1800, 1811-12 (2009) (holding that avoidance canon does not apply to "limit the scope of authorized executive action")
63. Northwest Austin Municipal Utility District Number One v Holder, 129 S Ct 2504 (2009) (applying avoidance canon to section 5of the Voting Rights Act).
64. 550 US 124, 153 (2007).
65. 128 S Ct 2229, 2271-72 (2008).
66. 129 S Ct 1231 (2009) (plurality).
67. Id at 1248. Though not phrased in explicit avoidance terms, the issue arose in Justice Kennedy's opinion involving a controversial Texas re-redistricting plan. LULAC v Perry, 548 US 399, 446 (2006) (Kennedy) (plurality) ("Accordingly, the ability to aid in Frost's election does not make the old District 24 an African-American opportunity district for purposes of s§ 2. If s§ 2 were interpreted to protect this kind of influence, it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions.").
68. 129 S Ct 2658 (2009).
69. Id, citing Escambia County v McMillan, 466 US 48, 52 (1984) (per curiam). Escambia County was an interesting case because "the parties did not brief or argue the statutory question on appeal. The Supreme Court vacated the decision and remanded the matter to the appellate court, instructing the court to consider first whether it could affirm the district court based solely on the Voting Rights Act."
70. Kloppenberg, 35BC L Rev at 1029 (cited in note 35).
71. Linda Greenhouse, Who Called Off the Charge?, "The Breakfast Table," Slate (June 29, 2009), online at http://www.slate.com/id/2220927/ entry/2221819/.
72. Ricci, 129 S Ct at 2664, 2676.
73. 42 USC s§s§ 1973-1973p (2004).
74. South Carolina v Katzenbach, 383 US 301, 307 (1966).
75. City of Rome v United States, 446 US 156, 187 (1980).
76. 521 US 507, 519 (1997).
77. 531 US 356, 373 n 8 (2001).
78. Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio St L J 177 (2005)
79. Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum L Rev 1710 (2005)
80. The Continuing Need for Section 5Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong, 2d Sess 10 (2006) (statement of Richard H. Pildes).
81. See generally David Epstein et al, eds, The Future of the Voting Rights Act (Russell Sage, 2008).
82. Georgia v Ashcroft, 549 US 461 (2003).
83. See 42 USCA s§ 1973c(b) (West Supp 2007).
84. For an exhaustive look at how the renewed section 5deals with the Georgia v Ashcroft precedent, see Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L J 174 (2007).
85. 42 USCA s§ 1973c(a).
86. See Richard Hasen, Pass the VRA Bailout Amendment, Roll Call (July 11, 2006), online at http://electionlawblog.org/archives/bailout.pdf.
87. Persily, 117 Yale L J 174 (cited in note 81)
88. Richard H. Pildes, Political Avoidance, Constitutional Theory, and the VRA, 117 Yale L J Pocket Pt 148 (2007), online at http://thepocketpart.org/2007/ 12/10/pildes.html.
89. Northwest Austin Municipal Utility District Number One v Mukasey, 573 F Supp 2d 221, 229 (DDC 2008) (three-judge court) ("in July 2006 Congress extended section 5fo r an additional twenty-five years.
90. Entitled the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, the statute, which passed overwhelmingly in both chambers (unanimously in the Senate and by 390-33 in the House), overruled several Supreme Court decisions interpreting section 5's substantive test, but otherwise left the law virtually unchanged
91. 2006 Amendments, 120 Stat. at 577
92. President George W. Bush signed the bill into law on July 27, 2006.").
93. See Chuck Lindell, Star Lawyer Makes Supreme Court Splash, Austin-American Statesman(July 5, 2009), online at http://www.statesman.com/ news/content/news/stories/local/2009/07/05/0705coleman.html ("When he has a choice of cases, [utility district lawyer Greg] Coleman said he looks for pro bono work that fits his philosophy. He took the Voting Rights Act case largely for free, with only a 'five-figure' contribution for expenses from the Project on Fair Representation, an advocacy group that challenges race-based government policies, Coleman said.").
94. Northwest Austin Municipal Utility District Number One v Mukasey, 573 F Supp 2d 221 (DDC 2008) (three-judge court).
95. Id (citing City of Rome, 446 US at 167).
96. 1982 Amendments s§ 2(b)(2), 96 Stat at 131
97. (codified at 42 USC s§ 1973b(a)(1)).
98. Northwest Austin Municipal Utility District Number One v Mukasey, 573 F Supp 2d at 231.
99. 435US 110 (1978).
100. Northwest Austin, 573 F Supp 2d at 232.
101. Id at 233 (citing S Rep No 97-417 at 57 n 192, US Code Cong & Admin News 1982, p 235, no 192).
102. See Heather Gerken, The Supreme Court Punts on Section 5, Balkinization (June 22, 2009), online at http://balkin.blogspot.com/2009/06/supreme-court- punts-on-section-5 .html ("the statutory argument is one that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because of prior Court opinions.")
103. Richard L. Hasen, Sordid Business: Will the Supreme Court Kill the Voting Rights Act? Slate (Apr 27, 2009), online at http://www.slate.com/id/2216888/ ("Since there's no good statutory loophole, the larger constitutional question seems unavoidable.").
104. Northwest Austin Municipal Utility District Number One v Holder, Oral Argument Transcript, Apr 29, 2009, at 14, online at http://www.supremecourtus. gov/oral-arguments/argument-transcripts/08-322.pdf ("Well Mr. Coleman, this is important to me. Do you-do you acknowledge that if we find on your favor on the bailout point we need not reach the constitutional point?").
105. See, e.g., id at 34 (statement of Justice Kennedy) ("Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio.").
106. Adam Liptak, Skepticism at Court on Validity of Vote Law, NY Times (Apr 29, 2009), online at http://www.nytimes.com/2009/04/30/us/30voting.html ("A central provision of the Voting Rights Act of 1965, designed to protect minorities in states with a history of discrimination, is at substantial risk of being struck down as unconstitutional, judging from the questioning on Wednesday at the Supreme Court.").
107. Northwest Austin Municipal Utility District Number One v Holder, 129 S Ct 2504 (2009).
108. Id at 2517 (Thomas, J, concurring in part and dissenting in part).
109. NAMUDNO, 129 S Ct at 2508.
110. Id at 2512-13 (quoting Blodgett v Holden, 275US 142, 147-48 (1927) (Holmes, J, concurring)).
111. The majority and Justice Thomas then debated whether a finding on bailout for the utility district would dispose of the case. Citing a concession by the utility district, the majority concluded it would do so. See NAMUDNO, 129 S Ct at 2513
112. see also id at 2517-18 (Thomas, J, concurring in part and dissenting in part).
113. Id at 2513. The Court began the section with the statement that "'Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case.' Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949)
114. see also Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 764, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949)
115. Philko Aviation Inc. v. Shacket 462 U.S. 406 412 103 S.Ct. 2476 76 L.Ed.2d 678 ( 1983)." But those cases involved statutory readings that went against the main purposes of the statute, in a way that the interpretation of the bailout provision did not. In Lawson, the Court refused to construe a provision in a statute governing disability payments in a way that would "create obvious incongruities in the language, and would destroy one of the major purposes of the second injury provision: the prevention of employer discrimination against handicapped workers. We have concluded that Congress would not have intended such a result." In McComb, the Court looked to legislative history to confirm the meaning of the statute. In Shacket, the Court refused to construe a statute to "defeat the purpose of the legislation."
116. NAMUDNO, 129 S Ct at 2514
117. (citing Dougherty County Bd of Ed. v White, 439 US 32 (1978)).
118. Id at 2515 ("Even if that is what City of Rome held . . .).
119. The Court ended its brief analysis by setting up a strawman argument: "The Government contends that this reading of Sheffield is mistaken, and that the district is subject to s§ 5under our decision in Sheffield not because it is a 'political subdivision' but because it is a 'State.' That would mean it could bail out only if the whole State could bail out." Id at 2516. But that is not what the government argued. Instead, the government offered the following reading of Sheffield: "Sheffield held that, in light of the statutory structure and purposes, 's§ 5's preclearance requirement for electoral changes by a covered 'State' reached all such changes made by political units in that State. Ibid.; see Sheffield, 435U.S. at 127
120. ('The reference to 'State' in s§ 5includes political units within it.')." Brief for Appellees at 13, online at http://www.abanet.org/ publiced/preview/briefs/pdfs/07-08/08-322-AppelleeFederal.pdf. In other words, the government argued that Sheffield itself read the term "State" to include political units within it; it did not argue that the utility district is a state.
121. Rick Hasen, The Scalia Enigma in NAMUDNO, Election Law Blog (June 23, 2009),online at http://electionlawblog.org/archives/013921.html.
122. See Thornburg v Gingles, 478 US 30 (1986) (recounting in detail Congress's amendment of section 2 of the VRA to account for the Supreme Court's City of Mobile holding).
123. See note 32 above (discussing Georgia v Ashcroft "fix").
124. Northwest Austin Municipal Utility District Number One v Mukasey, 573 F Supp 2d at 232-33 (citing House and Senate Reports).
125. NAMUDNO, 129 S Ct at 2517-18 (Thomas, J, concurring in part and dissenting in part).
126. The next few paragraphs are drawn from Richard L. Hasen, Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v Wisconsin Right to Life, 94 Minn L Rev 1064 (2008).
127. Bipartisan Campaign Reform Act of 2002 s§ 101, 2 USC s§ 441i(a) (Supp V 2007).
128. 424 US 1 (1976).
129. 2 USC s§ 441b.
130. See McConnell v FEC, 540 US 93, 126 (2003).
131. Buckley, 424 US at 44 n 51.
132. See McConnell v FEC, 540 US at 126-27.
133. See Bipartisan Campaign Reform Act of 2002 s§ 201
134. 2 USC s§ 434(f)(1) (Supp V 2007).
135. See Bipartisan Campaign Reform Act of 2002 s§ 203
136. 2 USC s§ 441b(b)(2) (2000 & Supp V 2007).
137. See Bipartisan Campaign Reform Act of 2002 s§ 311.
138. McConnell, 540 US at 210-11.
139. 479 US 238 (1986).
140. 540 US 93 (2003).
141. 494 US 652 (1990).
142. McConnell, 540 US at 206. By an 8-1 vote, the Court also upheld BCRA s§ 201 and s§ 311 against facial challenge.
143. 546 US 410 (2006).
144. See Hasen, 94 Minn L Rev at 1076-77 (cited in note 137).
145. 127 S Ct 2652 (2007).
146. See id at 2674-87 (Scalia, J, concurring).
147. The facts appear in Citizens United v FEC, 530 F Supp 2d 274 (DDC 2008).
148. Citizens United also wished to broadcast some 10-second and 30-second advertisements promoting the documentary. The corporation wished to do so without complying with BCRA s§ 201 (requiring disclosure of funders) or s§ 311 (requiring the "disclaimer" stating who paid for the advertisement and that it was not approved by any candidate or committee). The FEC conceded that the advertisements (as opposed to the documentary itself) were not the "functional equivalent of express advocacy," but it took the position that the rules of BCRA s§ 201 and s§ 203 still applied. According to the FEC, the disclosure rules were not eligible for the "as-applied" exemption that the Court created for corporate spending in WRTL II. Citizens United, 530 F Supp 2d 274.
149. Bipartisan Campaign Reform Act of 2002 s§ 403, 2 USC s§ 437(h) (2000 & Supp V 2007); 28 USC s§ 2284 (2000).
150. It also sought to bar enforcement of BCRA s§ 201 and s§ 311 disclosure requirements as to the advertisements.
151. Citizens United v FEC, 530 F Supp 2d 274 (DDC 2008) (three-judge court).
152. 128 S Ct 1732 (2008).
153. 2008 WL 2788753 (DDC July 18, 2008).
154. 129 S Ct 594 (2008)
155. Citizens United v FEC, Brief for Appellants at 27 n 2, online at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-205-Appellant.pdf.
156. 2 USC s§ 434(f)(3)(A) (Supp V 2007).
157. Id. The government disagrees that the Court should reach the question, Brief for Appellee at 24 n 7, online at http://www.abanet.org/publiced/preview/ briefs/pdfs/07-08/08-205-Appellee.pdf, but the BCRA legislative sponsors (Senators McCain and Feingold, and former Representatives Shays and Meehan) filed an amicus brief suggesting that if the Court is otherwise inclined to find for Citizens United in this case, it should do it on grounds that the FEC's implementing regulations did not clearly apply to "video-ondemand" broadcasts.
158. Brief Amici Curiae of Senators McCain and Feingold, and Former Representatives Shays and Meehan, online at http://www.abanet.org/publiced/ preview/briefs/pdfs/07-08/08-205-AppelleAmCuMcCain.pdf at 18-19 ("To the extent that there be some ambiguity in the applicability of the regulations, the Court could possibly conclude that it is sufficiently doubtful that on-demand viewing of Hillary: The Movie would have been within the scope of the FEC's current regulations that the Court should withhold judgment on the constitutional issue until such time as the FEC made a more specific regulatory determination to include such transmissions within the regulatory definition of electioneering communications. In no event, however, should the Court accept Citizens United's broad constitutional arguments that would place even express advocacy beyond the bounds of regulation if it is accessed at the choice of the viewer.").
159. Citizens United v FEC, Brief for Appellants, at 30 (cited in note 170) ("Austin was wrongly decided and should be overruled").
160. Citizens United v FEC, transcript of oral argument (March 24, 2009) at 27-28, online at http://www.supremecourtus.gov/oral-arguments/argument- transcripts/08-205.pdf.
161. Citizens United v FEC, Brief for Appellee, at 33-34 (cited in note 170).
162. Adam Liptak, Justices Consider Interplay Between First Amendment and Campaign Finance Laws, NY Times (March 24, 2009), online athttp://www.nytimes. com/2009/03/25/washington/25scotus.html
163. Dahlia Lithwick, The Supreme Court Reviews Hillary: The Movie,Slate (March 24, 2009), online at http://www.slate.com/id/2214514/.
164. Citizens United v FEC, Order, 129 S Ct 2893 (2009).
165. See Richard L. Hasen, The Supreme Court Gets Ready to Turn on the Fundraising Spigot, Slate (June 29, 2009), online at http://www.slate.com/id/ 2221753/.
166. NAMUDNO, 129 S Ct at 2508.
167. Schauer, 1995Supreme Court Review at 85 (cited in note 34) ("In reality, 'fairly possible' is a matter of degree, even assuming some interpretations are not fairly possible. Extending 'no vehicles in the park' to bicycles is more possible-less of a reach-than extending it to sleds, even though neither extension is compelled and neither is prohibited.").
168. Clark, 543 US at 380-81.
169. See generally Hasen, 94 Minn L Rev at 1064 (cited in note 137).
170. As I detail in Richard L. Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore 36-38 (NYU Press, 2003)
171. Harper v Virginia State Board of Elections, 383 US 663 (1966), the Supreme Court case striking down the use of poll taxes in state elections, came to the Supreme Court under a statute mandating Supreme Court appellate jurisdiction. Internally, the case appeared headed for a 6-3 summary affirmance of the lower court's upholding of the poll tax. Justice Goldberg wrote a draft dissent for three Justices, reprinted in Appendix 2 of my book. In that draft dissent, Justice Goldberg wrote in the first footnote of the differences between considering a case brought up on appeal compared to a case coming up on a writ of certiorari, whose denial says nothing about the Court's view of the merits. "However, this is an appeal, which by statute we must and do determine on the merits. Whatever[] may have been my decision as to whether or not certiorari should be granted on this issue, since his case is an appeal, I am compelled to face up to the substantial constitutional issue presented." (Citation omitted.) Similarly, it may be that some Justices considering the Citizens United case on mandatory appeal feel compelled to face the constitutional questions, even if the questions were not raised in the jurisdictional statement and were abandoned in the court below. Of course, NAMUDNO too reached the Court through mandatory appellate jurisdiction, yet only Justice Thomas reached the constitutional question.
172. See generally Hasen, 94 Minn L Rev 1064 (cited in note 137).
173. 5 5 0 US at 15 3.
174. 476 US 757 (1986).
175. Id at 812 (White, J, dissenting) (internal citation omitted)
176. see also id at 829 (O'Connor, J, dissenting) (same)
177. Stenberg v Carhart, 530 US 914, 977 (2000) (same).
178. Northwest Austin Municipal Utility District Number One v Holder, transcript of oral argument (Apr 29, 2009) at 51, online at http://www. supremecourtus.gov/oral-arguments/argument-transcripts/08-322.pdf.
179. As Heather Gerken observed: "The real worry for supporters of Section 5is the possibility that the Court's liberals thought that sending a crystal clear, united message to Congress was Section 5's best hope. That is, the four Justices on the Court may have been as convinced as many commentators are that Section 5will fall when the case returns, and they were hoping that a unanimous opinion would light a fire under Congress." Gerken: Can Congress Take a Hint?, Election Law Blog (June 23, 2009), online at http:// electionlawblog.org/archives/013911.html. On the message the Court conservatives might have been sending to Congress
180. see Ellen Katz, Ellen Katz: Roberts Didn't Blink, Election Law Blog (June 24, 2009), online at http://electionlawblog.org/archives/013926.html
181. Richard H. Pildes, A Warning to Congress, NY Times Room for Debate Blog ( June 22,2009), online at http://roomfordebate.blogs.nytimes.com/2009/06/22/the- battle-not-thewar-on-voting-rights/?scpp1&sqpPildes&stpcse#richard.
182. For some early expressions of these ideas, see Bruce Ackerman, Section Five and the On-going Canonization of the Civil Rights Movement, Balkinization Blog (June 22, 2009), online at http://balkin.blogspot.com/2009/06/section-five- and-on-going-canonization .html
183. Jack Balkin, Why Has the Roberts Court Suddenly Gone Minimalist? Balkinization Blog (June 29, 2009), online at http://balkin.blogspot.com/2009/ 06/why-has-roberts-courtgone- minimalist.html
184. Guest Post: Behind the Scenes in NAMUDNO, Election Law Blog (June 24, 2009), online at http://electionlawblog.org/archives/013932.html. On the debate over whether the Roberts Court's decision in NAMUDNO was an act of "statesmanship,"
185. see Sam Issacharoff, Issacharoff: On Statesmanship, Election Law Blog (June 24, 2009), online at http://electionlawblog.org/archives/013927.html
186. Dahlia Lithwick, Our Judges with Attitude, Slate (June 26, 2009), online at http://www.slate.com/id/2220927/entry/2221700/.
187. 129 S Ct 1231 (2009).
188. 129 S Ct 2658 (2009).
189. Rick Hasen, Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked, Election Law Blog (June 22, 2009), online at http://electionlawblog.org/ archives/013903.html.200
190. Glenn H. Utter and Ruth Ann Strickland, Campaign and Election Reform 192 (2d ed, ABC-CLIO, 2008) ("Americans typically have not viewed campaign finance reform as a top priority for the federal government to address").
191. See Nathaniel Persily and Jennifer S. Rosenberg, Defacing Democracy? The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court's Recent Election Law Decisions, 93 Minn L Rev 1644 (2009)
192. Joshua A. Douglas, The Significance of the Shift Toward As-Applied Challenges in Election Law, 37 Hofstra L Rev 635(2009).
193. Mark Tushnet, How the Supreme Court's Ruling on Ricci v. DeStefano Hints at Trouble Ahead, Dissent (July 12, 2009), online at http://dissentmagazine.org/ online.php?idp270.
194. Jeffrey Toobin, Annals of Law: No More Mr. Nice Guy: The Supreme Court's Stealth Hard Liner, New Yorker (May 25, 2009), online at http://www.newyorker. com/reporting/2009/05/25/090525fa-fact-toobin.
195. WRTL II, 127 S Ct at 2683-84 n 7 (Scalia, J, concurring).
196. Positive political theory views political actors seeking to maximize their preferences within institutional constraints. For an introduction to the concept as applied to statutory interpretation and interactions between the Supreme Court and Congress (and within each institution), see Eskridge, Frickey, and Garrett, Cases and Materials on Legislation at 75-76 (cited in note 12). More technically sophisticated versions of PPT use game theory to model these interactions, and consider as well the role of the executive. The basic idea of PPT in the Supreme Court-Congress game is that a majority of Court Justices seeks to move statutory law in its preferred policy direction without facing overruling by the Congress through amended legislation.
197. Tom Goldstein, Thoughts on This Term and the Next, SCOTUSblog (June 29, 2009),online at http://www.scotusblog.com/wp/thoughts-on-this-term-and-the-next/ .
198. On the nature and frequency of statutory overrides from a positive political theory perspective, see William N. Eskridge, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L J 331 (1991)
199. Pablo T. Spiller and Emerson H. Tiller, Invitations to Override: Congressional Reversals of Supreme Court Decisions, 16 Int'l Rev L & Econ 503 (1996).
200. For a classic PPT criticism of the concept of collective congressional intent, see Kenneth Shepsle, Congress Is a "We," Not an "It": Congressional Intent as an Oxymoron, 12 Int'l Rev L & Econ 239 (1992). As applied to courts
201. see Adrian Vermeule, The Judiciary Is a They Not an It: Interpretive Theory and the Fallacy of Division, 14 J Contemp Legal Issues 549 (2005).
202. See Ackerman, Balkinization Blog (cited in note 195) ("If Roberts and Kennedy don't have the courage of their convictions now, will they really lead the charge when the Obama justices are forcefully resisting, and legal momentum is on their side?").
203. See Harold J. Krent, Avoidance and Its Costs: Application of the Clear Statement Rule to Supreme Court Review of NLRB Cases, 15Conn L Rev 1, 1 (1983) (noting the "great latitude" avoidance-like doctrines give to the Supreme Court and the ad hoc nature of some Court decisions to invoke the avoidance canon).
204. Frickey, 93 Cal L Rev 397 (cited in note 33).
205. Devins, 32 U Dayton L Rev at 345(c ited in note 32).
206. See the headlines collected by Howard Bashman at his "How Appealing" blog on June 23, 2009, online at http://howappealing.law.com/ 062309.html#034476.