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94 N.Y.U. L. Rev. Online 1 (2019)

handle is hein.journals/nyulro94 and id is 1 raw text is: AVOIDING JUDICIAL ACTIVISM: THE SUPREME COURT'S UNCONVINCING EFFORTS TO RESTRICT THE SCOPE OF THE AVOIDANCE CANON BRIAN G. SLOCUM* The canon of constitutional avoidance is jurisprudentially important but poorly constructed. The Supreme Court frequently uses the canon in significant cases to justify second-best interpretations of statutes that avoid serious constitutional questions. Nevertheless, the triggerfor the application of the avoidance canon, textual ambiguity, has not been coherently developed by the Court and differs in important ways from ambiguity as linguists typically view it. In addition, the Court, in focusing on ambiguity as a precondition for the application of the avoidance canon, fails to recognize the different ways in which a statute might be indeterminate. Recently, the Court reaffirmed its conception of the avoidance canon in a case, Jennings v. Rodriguez,] involving prolonged immigration detention. In Rodriguez, the Court focused on ambiguity to the exclusion of other types of linguistic indeterminacy and continued to defend an unduly narrow conception of ambiguity that rejects implicit limitations on the scopes of statutes. This Article argues that the Rodriguez case highlights the need for the Court to reassess the avoidance canon. By doing so, the Court can give the avoidance canon a more defensible foundation that is consistent with the ways in which language operates. INTRODUCTION ..............................................1 I. JENNINGS V. RODRIGUEZ AND THE AVOIDANCE CANON'S REQUIREMENT OF AMBIGUITY ................................4 II. REASSESSING THE REQUIREMENT OF AMBIGUITY FOR APPLICATION OF THE AVOIDANCE CANON . .................8 CONCLUSION .......................................... .....13 INTRODUCTION The Supreme Court decides many highly controversial cases, involving claims of constitutional violations, through creative statutory interpretations.2 In many of these cases, the Court does this via the canon of * Copyright D 2019 by Brian G. Slocum, Professor of Law, University of the Pacific, McGeorge School of Law. J.D., Harvard Law School; Ph.D. in Linguistics, University of California, Davis. For helpful comments, the author would like to thank Omar M. Dajani, Jay Mootz, Victoria F. Nourse, Ted Sichelman, Lawrence M. Solan, and Jarrod Wong. 1 138 S. Ct. 830 (2018). 2 See, e.g., Eric S. Fish, Constitutional Avoidance as Interpretation and as Remedy, 114 MICH. L. REv. 1275, 1276-78 (2016) (describing recent high-profile cases in which the Court has used the avoidance canon). The avoidance canon gives the Court a license to engage in creative statutory interpretation when serious constitutional issues are raised, but the Court sometimes uses

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