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Analyzing avoidance: judicial strategy in comparative perspective.

ABSTRACT

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of--or the evolution of popular societal consensus around--a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.

Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court's candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power.
TABLE OF CONTENTS

Introduction
I.   Analyzing Avoidance
        A. Delay and Dialogue
        B. The Variables of Timing and Candor
II.  Ex Ante: Agenda Setting and Justiciability in the United States
        A. Certiorari and DIGs
        B.   Standing
III. In Medio: Doctrinal Innovation in Europe
        A. The European Convention System
        B. The Margin of Appreciation
IV.  Ex Post: Playing with Remedies
        A. The South African Remedial Power
            1. Irrigating the Arid Ground
            2. Remedies and the Suspension of Invalidity
        B. Canadian Delayed Declarations
            1. The Backdrop: Standing and Notwithstanding
            2. Remedies and Delayed Declarations of Invalidity
V.   Strategic Considerations in Comparative Perspective
        A. Timing and the Quality of Dialogue
        B. Candor and Judicial Capacity
        C. Deciding to Avoid: Factors for Further Study
Conclusion


INTRODUCTION

When Alexander Bickel wrote that the United States Supreme Court could (and should) avoid contentious issues by finding ways not to decide them, (1) scholars were appalled. Many argued that taking prudential considerations into account would undermine the legitimacy of the judiciary and threaten the rule of law. (2) How times have changed! Not only have modern political science and legal theory demonstrated that prudential considerations are likely critical to a court's legitimacy, (3) but courts around the world have taken the Bickelian suggestion to heart. (4) Avoidance is everywhere.

What might account for courts' burgeoning use of avoidance? The rise of constitutional courts and the ubiquity of rights adjudication have centered the democratic legitimacy of judicial review in the crosshairs of many political systems. (5) The "countermajoritarian difficulty" that Bickel identified in the United States more than fifty years ago is now a global export: What justifies unelected judges standing in opposition to the elected representatives of the legislature? It may be that the power of judicial review--including the ability to find and remedy a constitutional violation--is presupposed in some systems by the constitutional document itself, mitigating the tension. But as recent events in Hungary and Poland have demonstrated, (6) courts have little recourse when powerful political interests align against them.

Strategic avoidance--postponing decision of contentious issues that might threaten a court's institutional viability--is a way of engaging various external actors to create and secure institutional support. (7) Delaying a decision on substance might allow the time and space necessary for productive dialogue with (and within) the political branches to resolve the question outside of the courts. Delay may even allow for the evolution of popular consensus on the issue. The unelected judges on the court may thus be able to sidestep the difficult question, thereby safeguarding institutional legitimacy and security. In fact, courts worldwide seem to rely on the possibilities and benefits of extrajudicial political dialogue as a healing salve for their democratic deficits. (8) Of course, the quality and quantity of meaningful dialogue may vary. (9) And whether courts actually are able to protect or enhance their legitimacy through avoidance-based dialogue is an empirical question that has yet to be answered. (10) But many apex courts seem to operate under the assumption that dialogue provides such a benefit. (11)

This Article does not take a normative position on avoidance. Rather, by accepting avoidance as part of the judicial toolkit, it seeks to better understand the phenomenon and provide a new framework for its analysis. For the purposes of this Article, I assume that dialogue does enhance institutional legitimacy and security as it is often claimed to do. (12) Thus, taking those effects as given, the Article identifies and assesses the variables in an avoidance decision that might contribute to the likelihood and quality of this dialogue.

In Part I, I propose two identifying factors in the avoidance decision that might affect dialogue with the political branches: the timing of avoidance--when in the life cycle of a case does a high court choose to avoid--and the candor with which that court acknowledges its choice. In terms of timing, I employ a rough measure, dividing avoidance mechanisms into three timeframes. First, at the outset of litigation, ex ante mechanisms of avoidance, such as agenda-setting tools and justiciability doctrines, allow apex courts to avoid hearing the merits of cases. Second, courts use a variety of doctrinal techniques in the context of the merits determinations themselves--in medio mechanisms--to pick and choose among substantive grounds or to sequence questions in a way to avoid deciding certain issues. Third, courts may hear and decide contentious issues but then avoid articulating a remedy, an ex post mechanism that can be used to "remand" issues to the political branches for input. Candor, in turn, falls along a spectrum as developed through the comparative examples in the Article. It ranges from a court's express avoidance because of articulated institutional legitimacy reasons, to its complete refusal to decide without offering any explanation at all. (13)

How do the timing of and candor about an avoidance decision affect the quality and likelihood of the resulting dialogue? The heart of this Article provides a series of comparative examples to begin to tease out these relationships. The analysis also tracks possible unintended consequences of avoidance for the institutional interests of a court. I examine four jurisdictions, categorized into the three timeframes for avoidance noted above. Although of course any individual court may choose to avoid at different times in different cases, each court nevertheless operates against a backdrop of powers, norms, or historical events that makes certain timing choices more likely. With this perspective, I review the ex ante agenda-setting and justiciability tools used by the U.S. Supreme Court in Part II; the in medio doctrinal innovation of the "margin of appreciation," developed by the European Court of Human Rights in Part III; and the ex post remedial constructs relied upon by the Constitutional Court of South Africa and the Supreme Court of Canada in Part IV.

As the first study to analyze avoidance from a comparative perspective, this Article sheds light on various methods of avoidance and explores the relationships among timing, candor, and dialogue. But it does not seek to predict particular instances of avoidance; the study of this phenomenon is too new to say whether, in a given type of case, a court will choose to avoid, and whether it will do so with a particular degree of candor. (14) Future research can build on the empirically based advances in this Article to develop a theory of when one might expect avoidance to be used in various systems. As a start, I would emphasize that the courts addressed here have rights-adjudication responsibilities and function within diverse democratic-based systems. And in the Article's final Part, I suggest additional factors that may affect the likelihood of avoidance, including the internal institutional dynamics of a court, the judicial architecture of the legal system, and how well judges can be expected to understand and predict political threats or popular support.

Part V also clarifies the trade-offs between the different models of avoidance, and it highlights the role candor plays in the development of dialogue. In reviewing the choices made by the various courts described in Parts II-IV, it seems possible that the later and more candid the avoidance, the more likely that dialogue among the branches of government will be a meaningful conversation rather than parallel soliloquys. Of course, there are also potential unintended consequences of particularly candid avoidance. (15) Candor about judicial weakness may increase institutional security at the cost of institutional power. If a court is known to defer to the public's will, can it fulfill its role as the protector of minority rights or maintain the aspiration (let alone the actuality) of countermajoritarian constitutionalism? (16) Assuming that avoidance--through dialogue--enhances legitimacy, perhaps avoidance should also be assessed for its effect on a court's retained potential for exercising that legitimacy. (17)

I. ANALYZING AVOIDANCE

This Part takes a first cut at a schema for analyzing avoidance by identifying its purported benefit: delay allowing for dialogue. Although dialogue is widely touted by academics as a means of defanging the countermajoritarian difficulty and preventing backlash against a court, there is little empirical evidence demonstrating that dialogue (or delay) is actually linked to increasing or maintaining a court's legitimacy. Nevertheless, dialogic engagement has been embraced by many courts and, for purposes of this Article, is assumed to benefit those courts. If dialogue is a goal of avoidance, it then becomes necessary to assess those factors that might impact the quality and nature of that dialogue. The Part next discusses two possible variables: the timing of the avoidance (the stage in the evolution of a case at which a high court chooses to avoid) and the candor with which that court makes its decision (how clearly the court acknowledges its strategic choice to avoid).

A. Delay and Dialogue

Alexander Bickel advocated for avoidance as a mechanism of strategic consideration. His core insight was identifying the Supreme Court's institutional need "to ensure survival and to operate efficiently." (18) At the time he articulated these ideas, theorists saw neutral principles of law and "rigorous standards of principled adjudication" as the only way to protect and develop institutional legitimacy. (19) Considering institutional capacity, political pressure, and social change was outside the scope of what it meant to be a court and to apply the legal method. But scholarship by political scientists and lawyers has since suggested that high courts do (and often must) take expediency into account, not in spite of its impact on legitimacy, but precisely because strategic considerations can promote legitimacy. (20)

Legitimacy is a multifaceted concept, and by disaggregating its elements, scholars have shown that both principle and pragmatism are necessary to its maintenance. (21) At bottom, a court's institutional or sociological legitimacy, (22) determined by a mixture of compliance and enforcement in the face of substantive disagreement, (23) is different from the legal legitimacy found in its decisions. (24) Some measure of each is essential. (25) Understanding a court's institutional legitimacy as a distinct concept gives support to the idea that judges may act to enhance or protect that legitimacy apart from (or in a manner distinguishable from) a focus on the substantive legitimacy of their opinions. Protecting institutional or sociological legitimacy is therefore "an additional goal that high court justices pursue and that affects disposition of individual cases." (26) Strategic legitimacy cultivation should be an expected factor in judicial decisionmaking. (27)

Avoidance is a means of cultivating this legitimacy. A court can simply avoid deciding contentious, politically divisive issues that, by creating powerful opponents with the capacity to rein in (or oppose) the court's actions, could threaten its institutional legitimacy. The benefit of this strategy, of course, is delay: by postponing a difficult decision until popular opinion shifts or a solution can be developed through the political branches, the court would not have to take responsibility for imposing a new rule on a reluctant populace or opposing elites.

The key element in effectuating these benefits of delay is the dialogic possibility in avoiding adjudication. (28) Bickel himself highlighted the importance of promoting dialogue, suggesting that the Supreme Court use its rhetorical capacity to "explain the principle that is in play and praise it," without either accepting or denying the underlying right at issue. (29) In this way, the Court could engage the democratic branches in the enterprise of articulating and defining national rights. (30)

Judicial dialogue has become the preferred response to the countermajoritarian difficulty, leading to a robust literature and recommendations for dialogic practices in courts around the world. (31) The contours of dialogue theory have been drawn and redrawn over the past fifty years. (32) And the "language of dialogue is often used to describe very different theories of cooperative constitutionalism, each embracing a different understanding of the appropriate scope of the judicial and legislative roles." (33)

Efforts to use dialogue theory to justify judicial review or to explain the relationship between a court and a legislature are often driven by normative aims to ensure robust rights elaboration. (34) For example, Rosalind Dixon argues that, although the theory recognizes "limits to both judicial competence and responsiveness in the process of constitutional rights adjudication," (35) it nevertheless provides a justification for judicial participation in rights elaboration. Courts, she argues, have a "greater capacity and responsibility to counter legislative blockages to the realization of constitutional rights." (36) It is by countering legislative blind spots and burdens of inertia that courts contribute to "the legitimacy of the constitutional system as a whole." (37)

In contrast to these outcome-oriented justifications, structural definitions of dialogue focus on institutional design. Kent Roach builds on the Canadian experience with iterative analysis of rights by courts and legislatures to argue that "dialogue" may now be understood to refer "to any constitutional design that allows rights, as contained in a bill of rights and as interpreted by the courts, to be limited or overridden by the ordinary legislation of a democratically elected legislature." (38) But this institutional description provides little guidance for navigating the intersection between dialogue and the judicial role. Even in Canada, judges "have disagreed about the meaning of dialogue, with some stressing that it cannot be an excuse for an abdication of an anti-majoritarian judicial role ... and others suggesting that it requires judges to defer when Parliament expresses reasonable disagreement with the Court's reconciliation of individual and social interests." (39)

Whether proffering outcome-driven or design-based definitions, scholars defending or advocating dialogue participate in a literature shaped by the core Bickelian assumption that dialogue can benefit a court's institutional legitimacy. (40) But empirical political scientists have not yet engaged in this analysis, and some building blocks key to understanding the effectiveness of dialogue--"when and why legislatures accept certain judicial decisions" (41)--are relatively unexplored. Further, even assuming that dialogue functions as a release valve that provides courts with leverage and space to protect their institutional and sociological legitimacy, there is not yet a sense of what kind of dialogue is best suited to that ultimate aim.

B. The Variables of Timing and Candor

Accepting arguendo that courts take strategic considerations into account and that, by allowing for dialogue, there is a purported benefit in so doing, a central question remains: How? Two key variables are at play in the mechanism of avoidance: timing, or when to avoid in the evolution of a case; and candor, or the degree to which the court openly acknowledges its strategic choice to avoid. The issue of timing has not been addressed in the literature, but this Article begins to fill this gap. Parts II-IV examine avoidance mechanisms used at different stages in the lifespan of a case and discuss how the timing of avoidance may affect the nature of the dialogue that can ensue. This Section, in turn, discusses the second major variable: candor.

The role of candor has been discussed in the context of avoidance, as Bickel himself was roundly criticized for advocating the "covert deployment" of prudential considerations. (42) The question presented here is whether a court should admit that it is acting strategically. Should a court acknowledge its weakness or its unwillingness to make a difficult decision? How candid should a court be about its decision to avoid?

The literature on candor suggests it has a distinct normative status in law, but it is one that is often assumed rather than explicated. (43) Legal scholars often assert candor's importance without engaging in any of the moral reasoning such a claim entails--viewing it as a "self-evident truth of uncompromising importance." (44) Is candor inherently desirable either as an end or as a means? Nonconsequentialist arguments are rarely embraced or even properly presented. (45) The literature mostly focuses on the harms of lying rather than truth as a moral absolute. (46)

Most scholars make the more pragmatic claim that deception, whether through employing legal fictions or by hiding the true rationale for a doctrinal development, "undermines the integrity of the judiciary." (47) This argument rests on two core values that are thought to promote legitimacy: publicity and trust.

The principle of publicity--or public reason-giving--allows for notice, guidance, and prediction, all essential to the rule of law. (48) At a broad level of generality, this public reason-giving is a way of ensuring accountability, (49) allowing for meaningful democratic checks on power. (50) But accountability in the context of judicial processes is complicated, as political oversight threatens judicial independence. (51) Without providing a more contextualized institutional analysis, some scholars have simply agreed that candor "acts as a prophylactic; the requirement of publicity insures that the reasons on which decisions are based are at least minimally acceptable to the public." (52) Minimally acceptable reason-giving, however, is not a robust conception of the rule of law.

The second value tied to candor is trust. Put simply, suspicion undermines coordination. (53) Without candor, the world would be one of unresolved prisoner's dilemmas, (54) undermining not only the rule of law but all societal organization. Even if the rationale for judicial candor were to be relaxed in certain circumstances, a background norm of truthfulness is essential, as David Shapiro rightly notes, for "deception loses its point if it is not believed." (55)

Notwithstanding the strong presumption in favor of judicial candor, (56) there are, of course, countervailing pragmatic, strategic, and even normative interests. (57) Pragmatic concerns in multimember courts suggest that the benefits of achieving a majority opinion might cut in favor of some amount of opaque compromise. (58) In fact, majority coalition size may affect both acceptance of and compliance with a court's decision. (59) In addition, a strategic account would suggest it might be acceptable to misrepresent in order to achieve another good, such as secrecy or national security. (60) Guido Calabresi and Philip Bobbitt have suggested that subterfuge might be warranted by the tragic nature of a clash between competing values. (61) Indeed, as Calabresi has separately noted, "The most important ... kind of subterfuge is that designed to hide a fundamental value conflict, recognition of which would be too destructive for the particular society to accept." (62) Is hiding a decision to avoid--and thereby sidestepping a fundamental value conflict--an acceptable subterfuge?

Ultimately, the arguments for and against candor are not situated in empirical analysis of the effects of candor, and it is difficult to assess the benefits or harms only as a theoretical matter. But any analysis of avoidance should closely examine how candid a court is being about the scope of its own power and its choices to use or abjure that power. Candor is likely to have an impact on the avoidance calculus by affecting the quality or quantity of dialogue. If a court is candid about avoiding an issue because of its politicized nature, the court may be able to encourage dialogue with or among the political branches on the subject. But promoting dialogue may come at a cost; candor could also serve to undermine the court's effective authority. If a court is known to avoid politically divisive issues, it may lose its authority to decide controversial cases. The public may be reluctant to accept decisions in such cases if it has come to expect avoidance (especially if doctrinal evolution seems to require avoidance). If a court cannot ever decide a case in a countermajoritarian direction, can it fulfill its function? What use is its accrual of legitimacy, if it can never be expended? (63)

The next three Parts explore how courts in different jurisdictions have balanced these variables of timing and candor in their efforts to delay contentious decisions. Although any individual court may rely upon any or all of the various methods of avoidance, certain courts have preferred approaches that best exemplify avoidance at a particular time in the life-cycle of a case. Part II reviews the ex ante mechanisms used by the U.S. Supreme Court to avoid deciding merits issues altogether. Part III looks at how the European Court of Human Rights deploys doctrinal tools in medio to avoid deciding certain merits issues. And Part IV discusses how the South African Constitutional Court and the Supreme Court of Canada allow the merits questions to be raised and answered but use remedies, ex post, to parry, delay, and engage the political branches in the matter of redress.

II. EX ANTE: AGENDA SETTING AND JUSTICIABILITY IN THE UNITED STATES

The twenty-first century Supreme Court has the power and authority to declare laws unconstitutional and the sociological legitimacy to engender compliance. This judicial supremacy developed over decades with many contributing factors, (64) including, inter alia, the Court's use of a set of doctrinal and discretionary mechanisms to avoid deciding contentious constitutional questions. Noting the Court's emerging reliance on these techniques in the late 1950s and early 1960s, Alexander Bickel called them the "passive virtues." (65)

In Bickel's original invocation of the term, he focused on justiciability doctrines, such as standing, ripeness, and mootness. (66) These "virtues" allowed the Court to avoid hearing the merits of a case, ex ante. Of course, the Court has a wider range of avoidance tools it can deploy. Some come into play during the disposition of a case (in medio), such as immunity doctrines, deference doctrines, and the most obvious--the doctrine of constitutional avoidance. (67) And there are famous examples of remedial avoidance (ex post)--Brown v. Board of Education (Brown II)'s (68) "all deliberate speed" phrasing leaps to mind.

This Part, however, focuses on the Court's extraordinary ex ante toolkit, which has only expanded since Bickel first identified the passive virtues. (69) The Court now controls its own agenda through its discretionary power of certiorari and its ability to dismiss cases as improvidently granted (DIG), and it still retains the flexibility to avoid merits issues by using the justiciability doctrines that Bickel highlighted years ago. The U.S. Supreme Court has an unrivaled ability to decide "whether, when and how much to adjudicate," (70) marking its powerful ex ante avoidance techniques as exceptional in a global context. (71) But the Court rarely acknowledges its use of these mechanisms for avoidance purposes, opting for silence rather than a candid statement of its uncertainty or unwillingness to insert itself into a heated political debate. And it is possible that this preference for opacity may limit the Court's influence in ongoing debate.

A. Certiorari and DIGs

An observer today might remark that, given its ability to choose its cases, the Court should have little need for other avoidance techniques. Certainly, the certiorari power gives the Court tremendous agenda-setting capacity. And the most obvious way to avoid adjudicating the merits of a difficult and contentious constitutional claim is to avoid hearing it in the first place.

It seems plausible that the Justices use their discretionary power in such a strategic manner. (72) As an historical matter, careful statistical study of certiorari votes based on the private papers of several of the Justices has shown that "strategic voting does take place on a routine basis, though in conjunction with identifiable nonstrategic factors." (73) It is often difficult to determine when strategy is in play: as H.W. Perry wrote, "[A]ll of the justices act strategically on cert, at times, and much of the time none of them acts strategically." (74)

Yet, even if strategizing at the filtering stage, a Justice might miscalculate the expected positions of her colleagues or overlook a complicating element in the case. Sometimes these miscues can lead the Court to DIG. The Court can DIG an action even after briefing and oral argument, and scholarship suggests that "the Court is more likely to DIG cases raising constitutional issues," a result "consistent with the view that the Court might prefer to avoid resolving cases on constitutional grounds, or avoid such cases altogether." (75)

The notable quality of both the denial of certiorari and the DIG is the Court's practice of providing little explanation or justification for the action. The Court is decidedly not candid about its reasoning, and this lack of candor obscures the Court's ultimate motivations. Commentators chide the Court for this obfuscation, claiming that it has a practical impact. (76) For example, when "lower-court judges don't know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court's nonpronouncements." (77) This uncertainty among trained legal minds is reflected and amplified in the uncertain potential for political dialogue.

When the Court fails to explain its refusal to hear a case, its silence leaves political actors unable to predict what future action the Court expects or will accept from them. The Court's December 2015 decision to deny certiorari in an Illinois case, Friedman v. City of Highland Park, (78) which upheld a ban on assault weapons, provides a useful example. Friedman followed two rulings, District of Columbia v. Heller (79) and McDonald v. City of Chicago, (80) in which the Court interpreted the Second Amendment to ensure the right "to keep and bear arms for lawful purposes, most notably for self-defense within the home." (81) In his dissent from the denial in Friedman, Justice Thomas, joined by Justice Scalia, excoriated the Court for refusing "to review a decision that flouts two of our Second Amendment precedents," particularly given the Court's "willingness to summarily reverse courts that disregard our other constitutional decisions." (82)

What are observers to make of this result? The denial of certiorari came a few days after the mass shooting in San Bernardino, California. Was this just a difficult and politically fraught time to take another Second Amendment case? Or did the other Justices in the McDonald plurality decide not to vote to hear the case because of principled uncertainty about the extent of Second Amendment constitutional protections? Should municipalities see this as an invitation to regulate guns or as a short reprieve before the Court again takes up the Second Amendment? (83) Is the Court inviting dialogue or not? The lack of transparency makes it impossible to tell.

B. Standing

Of course, repeatedly dodging an issue at the certiorari stage or failing to calendar a case that raises a pressing question of federal law may give the impression of weakness or fear. Thus, even with docket control, the Court may nevertheless feel pressure to hear cases that could present threats to its institutional security. (84) Bickel argued that justiciability doctrines, such as prudential standing, offer a means of neutralizing these threats. (85) He advocated a discretionary "Power to Decline the Exercise of Jurisdiction Which is Given," exercised most often (though not always) by finding disputes nonjusticiable. (86)

Early uses of Bickelian jurisdictional dodges were notable for appearing strategic on their face. For example, in Naim v. Naim, (87) a case before it on mandatory jurisdiction, the Court avoided deciding whether a Virginia antimiscegenation statute violated the Fourteenth Amendment. (88) The direction of the Court's jurisprudence on the issue was clear and the question of principle undisputed: the law was unconstitutional. (89) But if the Court overturned the law, the Justices feared risking social upheaval and threatening the enforcement of Brown v. Board of Education. (90) The Court dismissed the case for failing to present a federal question. (91)

Commentators easily recognized the subterfuge: as Gerald Gunther wrote, if, as Brown taught, "race is a forbidden criterion, then miscegenation laws are invalid, no matter what the reaction of Southern opinion might be." (92) And Herbert Wechsler considered the Court's dismissal of the appeal as "wholly without basis in the law." (93) Because of the procedural posture of the case and the Court's obvious choice to avoid the merits, Naim presented the trade-off between principle and expediency in its starkest form. (94)

In recent cases, whether the "passive virtues" are in use is a more complicated question. First, the Court might not know the "right" answer: "The laws involved might be moving toward unconstitutionality (as our notions of basic rights changed) and yet not be invalid." (95) In fact, today's cases more often present competing or contentious claims of principle to ideologically divided Justices. (96) There is little sense that the Court knows and agrees on a principled result and is simply avoiding its application.

And second, straightforward jurisdictional dodges of the type in Naim are rare. In fact, modern justiciability doctrines, such as standing, ripeness, and mootness, complicate the assessment of strategy: there is often some debate about whether a justiciability doctrine is being used to avoid contentious issues or whether it reflects substantive and principled content on its own terms. Even Bickel acknowledged that these doctrinal means of avoiding adjudication on the merits have "significance of their own" and some "intellectual content," and thus "none is ... always available at will." (97) This merging of principle and prudence has partly obscured the use of the passive virtues in the years since Bickel wrote.

Standing, perhaps, provides the most powerful example. Though some historians argue that it was first constructed as a prudential mechanism, (98) standing also resonates with the case-and-controversy requirement of Article III and has been constitutionalized over time. (99) Furthermore, the development of standing doctrine has produced a large and intricate jurisprudence, (100) one that has grown sufficiently complex to allow for principled debates on its own terms, masking possible prudential considerations. (101)

Hollingsworth v. Perry (102) demonstrates this shift. The case presented the controversial issue of the constitutionality of same-sex marriage--a divisive topic roiling national politics and tailor-made for a prudential dodge. And not only was the possibility of using standing to avoid the merits issue available to the Court, but standing was in fact the ground on which the Court dismissed the case. (103) Nevertheless, and as commentators noted, (104) the Court's opinion addressing the complexity of the standing issue obscured any strategic motivation.

At the outset of the litigation, advocates for same-sex marriage worried that it was premature to bring the issue before the Supreme Court, given the national divide on the subject. (105) The initial suit, Perry v. Schwarzenegger, (106) was filed in federal district court in 2009 in the face of considerable dissatisfaction from various interest groups. (107) Plaintiffs--same-sex couples who were denied marriage licenses--challenged the constitutionality of Proposition 8, which had amended the California Constitution to ensure only opposite-sex marriages were valid. (108)

When state officials declined to defend the law, the district court allowed the official sponsors of Proposition 8 to intervene in their stead. (109) Finding for the plaintiffs, the district court enjoined state and local officers from enforcing the law, and the intervenors appealed. (110) After introducing the question of standing and certifying a question of state law to the California Supreme Court, the Ninth Circuit ruled that the intervenors' ability to stand in place of the state officials to defend the initiative's constitutionality was sufficient to confer Article III standing and allow them to prosecute an appeal. (111) The Ninth Circuit then affirmed the district court's ruling striking down Proposition 8, thus setting the stage for Supreme Court review.

As the parties were briefing the case at the Supreme Court, scholars noted the tensions it presented. At a symposium in October 2012, William Eskridge said "[u]ntil there is greater consensus, the Court ought to avoid any broad pronouncements on the merits of plaintiffs' claim that denying marriage equality to lesbian and gay couples violates the Fourteenth Amendment." (112) He suggested that the Court use the passive virtues and "dismiss the appeal as nonjusticiable: if the supporters of Proposition 8 have no constitutional standing to pursue the appeal to the Ninth Circuit or beyond, the Supreme Court could avoid any statement on the merits, which would be prudent." (113)

By the time the case was argued, "escaping] from the exercise of jurisdiction" seemed, to some, increasingly attractive. (114) During oral argument, Justice Kennedy expressed his view that the "issue was in flux." Describing the oral argument, Orin Kerr suggested Kennedy may have been "arguing that the Court shouldn't get involved in the sense that Alex Bickel called the passive virtues--declining to rule on the issue while societal views are not yet resolved." (115) Orin Kerr also sensed that the Justices were weighing whether to use "the passive virtues ... [to wait for] 'the political institutions [to] make their decision before the Court is required to pass judgment on its validity.'" (116) And during the months between oral argument and the decision, the blogosphere was alight with references to the passive virtues. (117)

The circumstances surrounding the case presented a strong argument for avoiding adjudication: holding Proposition 8 constitutional would have served to legitimate a questionable law in the context of ongoing social change, with the possibility of stymying or retarding political debate on the issue. But finding Proposition 8 unconstitutional and thereby creating a nationalized right to same-sex marriage--whether on due process or equal protection grounds--could have thrust the Court into a polarized debate, possibly engendering backlash and weakening the Court. (118)

The Supreme Court ultimately decided that the proponents of Proposition 8 had no direct stake in the case's outcome and thus lacked Article III standing. (119) But the Court's doctrinal debate left only a narrow opening for claims of strategic manipulation. The majority and dissent agreed that standing could not be based on the initiative proponents' individual interests in the legislation. But they diverged on whether standing could be based on a representative interest--whether the proponents could act as representatives of the state to defend a state referendum. The majority concluded that they could not.

The issue was novel--and given that "the Court had never before ruled on this specific standing question, one cannot casually disparage the decision in the same way that commentators assailed the Court's dodge of the miscegenation issue in the 1950s." (120) Indeed, scholarly commentary in this instance has been mixed. (121) And, more importantly, the Justices themselves seemed to struggle with the question of agency, and both the majority and dissent raised a litany of cases to support their positions. Furthermore, the voting breakdown did not present an obviously ideological story: Justices Roberts, Scalia, Kagan, Breyer, and Ginsburg formed the majority denying standing, with Justices Kennedy, Sotomayor, Alito, and Thomas in dissent. (122) In other words, each side's opinion appeared principled, though individual Justices may have acted strategically in reaching their individual voting decisions.

The dissent suggested that the majority was acting to avoid "entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject." (123) But beyond the dissent's, there were few other cries of strategic decisionmaking. There could, of course, be reasons for this paucity of complaints other than the complexity of the standing doctrine. The Court's decision created a geographically confined middle ground that may have pleased many. It neither recognized a national right to same-sex marriage nor denied that such a right could exist. And it left undisturbed the right in California, based on the district court's judgment that Proposition 8 was unconstitutional. (124) But even those who approved of the ultimate outcome had no reason to deny or ignore the dodge that enabled it--unless they, too, viewed the standing decision as a close question of law. It seems plausible, therefore, to accept the Court's decision in Perry as a sincere holding on the standing issue.

There is a benefit to the Court in the thickening of these justiciability doctrines: the increased opacity of the use of the passive virtues. In their initial responses to Bickel, critics of his pragmatic approach questioned the Court's ability to successfully hide its intentions. Gunther concluded that the average citizen would see little difference between the use of the passive virtues to avoid an issue (while leaving the challenged statute in place) and an adjudication on the merits finding the statute constitutional. (125) And, more critically, "for the informed court watcher or legal academic, the use of the 'passive virtues' may detract from the Court's perceived legitimacy," as he or she would recognize the dissembling. (126) In other words, much of the public would not appreciate the subtle distinction, and those who did would understand the passive virtues to be strategic behavior, "undermin[ing] the legitimacy of judicial institutions by sending a message to the public that courts are not impartial institutions." (127) But, and as Perry suggests, as justiciability doctrines become more complex, average citizens and informed court watchers alike may find the Court's decisions more principled (or more impenetrable). (128)

Standing's evolution does raise other questions. Standing has always presented the tension between safeguarding judicial power by limiting it to private rights and abdicating judicial responsibility for protecting public rights in a countermajoritarian context. (129) And the doctrine is being more rigidly constitutionalized, with injury-in-fact, causation, and redressability as Article III requirements, (130) placing prudential considerations in jeopardy. (131) The complexity of the doctrine may obscure the Court's intentions, but its constitutionalization threatens the flexibility that served as the core benefit of this passive virtue. (132)

Flexible agenda-setting tools and prudential considerations allow the Court to avoid adjudicating divisive or contentious issues--perhaps because the issues would be better solved by the political process. Bickel certainly hoped that the Court would not "resolve issues on which the political processes are in deadlock" but would "do what it can to break that deadlock, so that the political institutions may make their decision before the Court is required to pass judgment on its validity." (133)

It is not clear that the passive virtues allow for this level of dialogue. There are costs to meaningful engagement in silence and dissembling. But there may be institutional benefits as well. After all, the Supreme Court has developed into the world's most powerful court, rarely limited by doctrine from adjudicating tough issues should it choose to do so. As Bush v. Gore (134) makes clear, the Supreme Court's effective authority, developed over many decades and often against a background of strategic opacity, is robust.

III. IN MEDIO: DOCTRINAL INNOVATION IN EUROPE

As with the ex ante avoidance techniques addressed above, avoidance in medio is also designed to prevent a particular merits issue from being addressed without foreclosing that issue from arising in the future. In medio avoidance similarly serves to delay a decision on a contentious issue ostensibly to allow for societal norm evolution or for political dialogue and legislative resolution of the question. But, in contrast to the ex ante approaches, in medio avoidance occurs during the case itself, after the merits issues have been aired. The opportunity exists, therefore, for a court to opine or comment on the merits issue, weighing in on an existing debate without deciding the legal question.

This Part examines the in medio doctrinal approach created by the European Court of Human Rights (ECtHR): the margin of appreciation. It first explains the rights-protection system in which the ECtHR operates, noting that other mechanisms of avoidance--ex ante agenda setting and ex post remedial options--are unavailable to that court. It then turns to the margin of appreciation doctrine, outlining its use and function as an avoidance tool. The margin of appreciation raises questions about candor, the effectiveness of a dialogic solution, and the effective power of the ECtHR itself.

A. The European Convention System

In the aftermath of the Second World War, leaders from ten European countries created a new regional organization called the Council of Europe, (135) with a primary goal of composing a human rights charter. The result was the European Convention on Human Rights and Fundamental Freedoms (Convention), (136) which entered into force in 1953. (137) Article 1 of the Convention requires that each member state secure to everyone within its jurisdiction a set of defined rights and freedoms. (138) These rights are mainly civil and political rights: rights considered "essential elements of the foundation of European democracies." (139)

The Convention creates a nuanced rights architecture, (140) which incorporates various possibilities for derogation and limitation by member states. (141) In the key "Personal Freedoms" articles, (142) the first paragraph of each provision guarantees a broad substantive right--for example, the right to privacy--often formulated in what have been described as "vague and general notions," meant to apply in varied situations. (143) The second paragraph, however, provides a limitation clause. In general, these clauses state that interference with the exercise of the relevant right will only be permitted if it is in accordance with law and necessary in a democratic society in furtherance of a legitimate interest. The difficult definitional work, and ultimately the scope of the protected right, is determined through the "extra-juridical rules or values" contained in the limitation clauses. (144)

Alec Stone Sweet describes the Convention system as one of "constitutional justice," not only due to its entrenchment of fundamental rights, but also for its provision of individual access to the ECtHR for protection of those rights. (145) In fact, the Convention "broke new ground as the first treaty granting individuals a right of petition" (146)--an innovation in international agreements that suggests the Convention's quasi-constitutional status. (147) The ECtHR itself has treated the Convention as having a constitutional aspect, (148) and the court performs "many of the same functions that powerful national constitutional courts do, using similar techniques, with broadly similar effects." (149)

As a de facto constitutional court in charge of a quasiconstitutional system of rights protection, (150) the ECtHR faces considerable institutional challenges. (151) There are now forty-seven countries that are signatories to the Convention, and with mandatory jurisdiction, (152) the ECtHR has a tremendous caseload. It had 64,850 pending cases as of December 31, 2015. (153) Rules of admissibility have tightened over time, but so long as an applicant has exhausted her domestic remedies, access to the court remains broad. (154) In adjudicating disputes, the court has an extremely difficult task: it must "render retrospective justice in individual cases, ... construct Convention rights and ... ensure their general effectiveness across Europe, prospectively," with "command and control capacities" that are "weak, at best." (155) The ECtHR lacks authority to "invalidate national legal norms judged to be incompatible with the Convention" directly, (156) and the Convention system lacks a powerful supranational legislature to aid the court in its efforts. (157)

The ECtHR's toolkit is therefore limited to its moral authority (158) and its ability to order compensatory damages and other remedies. (159) The Committee of Ministers of the Council of Europe also encourages, and occasionally obliges, member states to engage with the court's decisions. (160) At bottom, the ECtHR is reliant on the "good will and good faith of most States" to ensure that its rulings are carried into effect. (161) Notwithstanding this weak enforcement regime, compliance is nevertheless accepted as of critical importance for the institution's legitimacy and effectiveness. (162)
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Title Annotation:Abstract through III. In Medio: Doctrinal Innovation in Europe A. The European Convention System, p. 1-34
Author:Delaney, Erin F.
Publication:Duke Law Journal
Date:Oct 1, 2016
Words:7325
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