	Introduction

Article III of the Constitution established the judicial branch of the United States, consisting of the Supreme Court and of any "inferior Courts as the Congress may from time to time ordain and establish.... " To staff such courts, the Constitution empowered life-tenured and salary-protected judges to adjudicate certain "cases" or "controversies," including cases arising under the Constitution. Indeed, the Supreme Court has established a host of loosely related rules generally called the constitutional avoidance doctrine that discourage a federal court from issuing broad rulings on matters of constitutional law. After providing general background on the power of judicial review and the major theories justifying the constitutional avoidance doctrine, this report explores the various rules that allow a court to avoid a broad ruling that invalidates a democratically enacted law and the logic behind those rules. The report concludes with an exploration of how the doctrine of constitutional avoidance has influenced some of the recent jurisprudence of the Roberts Court, criticisms of the doctrine, and the implications for Congress. While the Constitution itself is silent on the power of judicial review, in Marbury v. Madison, Chief Justice John Marshall formally concluded that the logic of the written Constitution coupled with an independent judiciary necessitated the federal judiciary's unique role in being able to invalidate the acts of other branches of government that contravened the Constitution. In sharp contrast to the views of the Framers, American history has been replete with examples of outcry at the scope of the powers provided to the unelected federal judiciary. As a result, judicial review necessarily invites conflict with the political branches. The "Passive Virtues" and Judicial Minimalism

In The Least Dangerous Branch, Professor Alexander Bickel proposed a solution to the countermajoritarian difficulty, a solution that has deep roots in the High Court's constitutional jurisprudence and has been the inspiration for many members of the judiciary when approaching difficult constitutional questions. Bickel argued that when the Supreme Court is faced with a difficult question of constitutional law, the Court need not as a matter of course exercise the power of judicial review and serve in either a legitimating or countermajoritarian role. The Supreme Court can opt for the third route by practicing the so-called "passive virtues," a set of tools, such as the justiciability doctrines and the Court's discretionary certiorari power, with which the Court can return an unsettled constitutional problem to the political realm for resolution. For Bickel, by employing the "passive virtues" and exercising judicial review only when constitutional principles are sufficiently clear for resolution, the Court can avoid unnecessary entanglement in controversial and sensitive constitutional issues, protecting the judiciary from potential backlash by the political branches and preserving the Court's role as the protector of established constitutional principles. At the same time, the use of the "passive virtues," according to Bickel, encourages constitutional dialogue within the other branches and the public and allows the Court to better gauge what is the appropriate constitutional principle animating a particular issue. Professor Cass Sunstein's work on "judicial minimalism" is often seen as the modern continuation of Professor Bickel's work. Specifically, Professor Sunstein advocates for "judicial minimalism"—that is, in deciding cases, judges should "say[] no more than necessary to justify an outcome, and leav[e] as much as possible undecided.... " In particular, courts, according to Sunstein, should strive to make rulings that are both narrow—decisions that are no broader than necessary to resolve the case at hand —and shallow—decisions that avoid questions of basic principle and reach "concrete judgments on particular cases, unaccompanied by abstract accounts about what accounts for those judgments." First, Professor Sunstein argues that minimalism reduces burdens on the judiciary in trying to reach a decision. The October 2012 term witnessed the Roberts Court avoiding ruling on two of the most controversial legal issues currently being debated in the United States through the use of the standing doctrine.
Article III of the Constitution established the judicial branch of the United States, staffing the branch with life-tenured and salary-protected judges. Amongst the powers of the federal judiciary is the power of "judicial review"—that is, the power to invalidate the acts of other branches of government and the states that contravene the Constitution. The Framers of the Constitution established this "countermajoritarian" role for the judiciary to help protect the written Constitution and its principles against incursions from the political branches. The power of judicial review is both a potent and controversial power, as American history has been replete with examples of outcry at when unelected federal judges invalidate the acts of a democratically elected branch of government. The potential for backlash to judicial review by the political branches has resulted in what late Professor Alexander Bickel termed a "countermajoritarian difficulty," as the judiciary is needed to protect the basic principles of the Constitution, but is also necessarily dependent on the political branches to enforce the judiciary's mandates. In other words, judicial review, while necessary to protect the mandates of the Constitution, is inherently antidemocratic, risking an erosion of the judiciary's role in the American constitutional form of government.
The prominent solution to the potential perils of the countermajoritarian difficulty, as espoused by Professor Bickel, is that the judiciary—and in particular the High Court—should exercise the "passive virtues," a set of tools, such as the justiciability doctrines, with which a court can return an unsettled and controversial constitutional problem to the political realm for resolution. The logic of Bickel's theory is that by "staying its hand" a court can avoid unnecessary entanglement in controversial and sensitive constitutional issues, while simultaneously allowing the judiciary to better gauge what is the appropriate constitutional principle animating a particular issue. Professor Bickel's work has been built on by Professor Cass Sunstein, who has argued that when the Supreme Court does reach the merits of a constitutional question (as opposed to avoiding the question entirely), the Court should practice "judicial minimalism,"—that is, in deciding cases, judges should say no more than necessary to justify an outcome and leave as much as possible undecided. Sunstein justified his theories on the grounds that minimalism reduces burdens on the Supreme Court and promotes democratic dialogue on difficult constitutional law questions.
The works of Professors Bickel and Sunstein are anchored in "deeply rooted" precedent from the Supreme Court in a doctrine called the constitutional avoidance doctrine. The doctrine was perhaps best articulated in a concurrence by Justice Louis Brandeis in Ashwander v. TVA, in which Justice Brandeis listed seven different loosely related rules that allow a court to avoid issuing broad rulings on matters of constitutional law. A host of recent cases from the Roberts Court on some of the most controversial legal issues currently facing the nation—including foreign surveillance, gay marriage, voting rights, the scope of Congress's enumerated powers, affirmative action, and mandatory union dues—have deployed the Ashwander rules to avoid having the Supreme Court issue broad rulings on the Constitution. After providing general background on the power of judicial review and the major theories on the constitutional avoidance doctrine, this report explores the various rules that allow a court to avoid a ruling that invalidates a democratically enacted law and the logic behind those rules. The report concludes with an exploration of how the doctrine of constitutional avoidance has influenced some of the recent jurisprudence of the Roberts Court, criticisms of the doctrine, and the implications for Congress.