In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn, quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent Terms, playing a significant role in justifying the Court’s construction in only one majority opinion since 2012.

This Article examines the Roberts Court’s recent shift in approach to the avoidance canon. It departs from the conventional wisdom about the Roberts Court and the avoidance canon in several important ways. First, it posits that the conventional view about the Roberts Court’s aggressive use of the avoidance canon may itself have contributed to the Court’s shift away from invoking the canon in recent Terms—that is, the Court may have ratcheted down its use of the canon in response to commentators’ attacks against its reliance on avoidance in its early Terms. Second, this Article argues that the Roberts Court has recently adopted a passive rather than aggressive form of avoidance, in which it effectively avoids deciding controversial, unresolved constitutional questions—but without invoking avoidance, and without openly admitting to rewriting or straining the statute’s text. Third, and perhaps most importantly, this Article uncovers several new tools of “passive avoidance” that the Court has employed to do the work previously performed by the avoidance canon. In the end, it posits that passive avoidance may actually be a good thing—and the truest form of constitutional avoidance.

* Mary C. Daly Professor of Law, St. John’s University School of Law. I owe deep thanks for valuable insights and conversations to Aaron-Andrew Bruhl, Marc DeGirolami, Ryan Doerfler, William N. Eskridge, Jonah Gelbach, Rebecca M. Kysar, Ethan Leib, Margaret H. Lemos, Kate Levine, Nina Mendelson, Kate Shaw, and Kevin Stack. I am especially indebted to my husband, Ron Tucker, for his patience with this project. Thanks also to Dean Michael A. Simons and St. John’s Law School for generous research assistance, and to participants at statutory interpretation theory seminars at the University of Pennsylvania Law School and Yale Law School for insightful discussions about earlier drafts of this Article. Kathryn Baldwin, Danielle DelGrosso, Melissa Parres, Barbara Reilly, Ashleigh Shelton, and Jennifer Thomas provided excellent research assistance, and Janet Ruiz-Kroll provided invaluable assistance with the tables. Finally, special thanks to the outstanding editors of the Stanford Law Review for their thoughtful comments and editorial work on this Article. All errors are my own.