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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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