Avoiding Constitutional Cases

• DOI: 10.1177/1532673X10388144
• Author: Greg Goelzhauser
• Date: 01 May 2011
• Published date: 01 May 2011
• Subject Matter: Articles

American Politics Research

39(3) 483 –511

© The Author(s) 2011

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DOI: 10.1177/1532673X10388144

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388144APR

1Coastal Carolina University, Conway, SC

Corresponding Author:

Greg Goelzhauser, Coastal Carolina University, 133 Chanticleer Dr., Conway, SC 29526

Email: ggoelzha@coastal.edu

Avoiding

Constitutional Cases

Greg Goelzhauser1

Abstract

Why does the Supreme Court avoid deciding cases it accepts for review? In

this article, I contend that the Court uses procedural access doctrines such

as standing, ripeness, and mootness to sidestep constitutional cases when

confronted with certain internal and external pressures. Using data from

1946 to 2001, the results suggest that the Court utilizes procedural tools

to dismiss constitutional cases when preference heterogeneity on the Court

increases and when the justices are confronted with issues about which

groups feel strongly and are deeply divided. Although the Court does not

appear to be influenced by the threat of political opposition, it is more reluc-

tant to resolve disputes when members of Congress file an amicus brief. The

results offer a first glimpse into how often the Court invokes the “passive

virtues.” They also have implications for our understanding of agenda setting,

decision-making in access cases, and normative constitutional theory.

Keywords

Supreme Court, Congress, judicial review, justiciability, amicus brief, agenda

setting

Introduction

In 2002, a Ninth Circuit Court of Appeals panel declared the statutory inser-

tion of “under God” into the Pledge of Allegiance unconstitutional and prohib-

ited public school teachers from leading voluntary recitations of the Pledge.1

484 American Politics Research 39(3)

The response was unrelenting: President Bush called the decision “ridiculous”;

Senate party leaders Tom Daschle (Democrat) and Trent Lott (Republican)

referred to it as “just nuts” and “stupid” respectively; the Senate passed a reso-

lution 99-0 urging the Supreme Court to reverse, and the public overwhelm-

ingly disapproved of the decision.2 The Supreme Court agreed to hear the case,

but ultimately avoided the constitutional question by ruling that Michael

Newdow, a noncustodial parent, lacked standing to sue on his daughter’s behalf

(Elk Grove v. Newdow, 2004).

Why does the Supreme Court avoid deciding cases it accepts for review?

Newdow posed a contentious constitutional question that affected diffuse

interests—precisely the type of case the Court seems likely to decide. Deciding

important cases helps ensure maintenance of the Court’s institutional legiti-

macy (Provine, 1980) and allows the justices to translate their policy prefer-

ences into law while making efficient use of scarce docket space (Caldeira &

Wright, 1988). Nonetheless, there is an established tradition in modern con-

stitutional theory touting the benefits of using procedural tools to avoid decid-

ing constitutional cases (see, for example, Bickel, 1986; Burt, 1992; Devins,

1999; Devins & Meese, 2005; Sunstein, 1999). There is also widespread

agreement that the Court regularly engages in this practice (see, for example,

Bickel, 1986; Stearns, 2000; Sunstein, 1999; see also Kloppenberg, 2001).

Yet we lack a comprehensive theoretical account of the conditions that lead the

Court to utilize procedural tools to sidestep constitutional disputes. Commentators

sometimes note that these tools are invoked to circumvent “difficult” cases

(e.g., Bickel, 1986; Kloppenberg, 2001; Pacelle, 2002), but to the extent nearly

all of the Court’s constitutional cases are difficult in some sense (Posner,

2005), this explanation offers little guidance for understanding this important

aspect of judicial behavior. Moreover, aside from a series of anecdotes, we

lack any firm sense of how often the Court uses procedural tools to avoid decid-

ing constitutional cases.3

In this article, I contend that the Court uses procedural access doctrines

such as standing, ripeness, and mootness to avoid deciding constitutional cases

when confronted with a variety of internal and external pressures.4 Internal

pressures arise with increased preference heterogeneity among the justices.

Heterogeneous judges encounter more difficulty forging agreement on the

design of legal rules (e.g., Clark, 2009a; Epstein, Friedman, & Staudt, 2008;

Maltzman, Spriggs, & Wahlbeck, 2000) and are less able to insulate them-

selves from political blowback (Epstein, Segal, & Victor, 2002). Confronted

with increased “decision costs” (Sunstein, 1999), sidestepping substantive

rulings buys the Court time while allowing more information about the policy

environment to surface.