17 Green Bag 2 D 173 the Doctrine of One Last Chance

ONSTITUTIONAL AVOIDANCE is an old idea, but the Roberts Court has given it a new twist. Instead of avoiding constitutional questions whenever possible, recent Supreme Court majorities have tended to engage in avoidance just once before issuing disruptive decisions. For example, the Roberts Court initially ducked constitutional challenges to central pillars of the Bipartisan Campaign Reform Act and the Voting Rights Act. But when those measures came before the Court for a second time, they were both struck down as unconstitutional, despite their importance and bipartisan support. A similar pattern of limited deferral may be visible in other recent cases, as the Roberts Court has taken a pass on its first opportunities to strike at the Affordable Care Act, affirmative action in higher education, and same-sex marriage laws.