On October 18, Professor Anita S. Krishnakumar presented her paper, “Veiled Avoidance,” at a seminar on Advanced Statutory Interpretation and Legislation run by Professors Jonah Gelbach and Ryan Doerfler at the University of Pennsylvania Law School. Here is the abstract:
In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in several controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn—quietly creating exceptions or reading in statutory conditions in order to elide potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely (conspicuously) missing from many cases decided during the Court’s most recent terms—doing significant work in only one majority opinion since 2012.
This paper explores the Roberts Court’s recent shift in approach to the avoidance canon. It posits that there are several factors that together have prompted the Roberts Court to continue to rewrite—rather than simply invalidate—statutes whose most natural reading poses serious constitutional problems, but to do so without invoking the avoidance canon. First, the Court may be reluctant to simply invalidate statutes on constitutional grounds because it recognizes that this is an era of extreme political polarization and institutional gridlock. That is, the Court may be going out of its way to uphold statutes that it might otherwise have declared invalid—because it knows that, as a practical matter, Congress is unlikely to muster the political cohesion necessary to fix the constitutional infirmity and reenact the statute. Second, the Court may be reacting to the criticism and negative commentary it has received for its prominent use of the avoidance canon in earlier terms. That is, we may be seeing something of an avoidance, in which the Court ratchets down its use of the canon following periods of high, controversial use and criticism, and ratchets it up again after a period of quiet and relative disuse.