Bond and the Doctrine of One Last Chance

Yesterday’s decision in Bond v. United States provides the latest example of perhaps the most salient methodological theme of the Roberts Court. Faced with an attractive first-principles argument that threatened immediate doctrinal and real-world disruptions, the Court punted. Instead of resolving the constitutional issue presented, the Court found a barely tenable way to avoid resolving the issue altogether, thereby creating the possibility of a more secure opportunity to rule at a later date. In a recent Green Bag essay, I called this phenomenon “the doctrine of one last chance.” If Bond really does fit that description, then the Court wouldn’t simply have engaged in conventional avoidance, which is constant over time. Instead, the Court would have engaged in super-strong but strictly time-limited avoidance. If the issue arose again, the Court’s hesitancy would evaporate.

The doctrine of one last chance holds that the Court must stay its hand once — but just once — before issuing immediately disruptive decisions. This precept most obviously arose in Northwest Austin Municipal Utility District No. 1 v. Holder, where the Court adopted an extraordinarily strained statutory reading to avoid what would have been an immediately disruptive result: invalidating the Voting Rights Act’s coverage formula. But the Court didn’t truly avoid the constitutional merits — instead, it packed its decision with dicta suggesting that the merits would likely be decided against the Act’s constitutionality. In this way, Northwest Austin gave notice that the coverage formula was in trouble, thereby affording the political branches a window of time in which to take action. This hesitancy was nowhere to be found in Shelby County, Alabama v. Holder, which the Court chose to hear despite the absence of a circuit split. By exhibiting a high degree of restraint in the moment, Northwest Austin ironically established the groundwork for Shelby County‘s subsequent invalidation of a key federal statute with bipartisan support in Congress.

Bond looks a lot like Northwest Austin. In Bond, the constitutional issue concerned federal legislation implementing the Chemical Weapons Convention. Ruling on that issue could have taken the United States out of compliance with a major international agreement — and at a time when U.S. foreign policy substantially involves curbing the use of chemical weapons in places like Syria. Moreover, a disruptive holding in Bond would have been in the headwind of the most on-point precedent, Missouri v. Holland. These are the kinds of immediate practical and doctrinal disruptions that trigger the doctrine of one last chance. So, true to form, the Court (per the Chief) found a tenuous statutory interpretation while casting doubt on the apparently broad scope of relevant precedent — much as happened (for instance) in Northwest Austin and FEC v. Wisconsin Right to Life. Meanwhile, Bond included suggestive language indicating that Holland might be subject to narrowing. For instance, Bond ends by saying that the government’s view of the case posed a “dramatic departure” from the original “constitutional structure.” Having given this warning, the Court might not be so determined to engage in avoidance the next time.

Of course, there’s no guarantee that the Court will actually follow through on Bond’s tacit threat. A key virtue of the doctrine of one last chance, after all, is that it can eliminate the need ever to issue a disruptive holding. For instance, the political branches might act to avoid future confrontation with the Court, such as by more carefully drafting implementing legislation. Or the United States might exercise prosecutorial discretion so as to avoid creating other vehicles for Supreme Court review. Alternatively, the extra time that the Court has bought by punting in Bond might generate new information that could persuade the Court to change its views on the merits in the next case. That seems like a live possibility, since Bond didn’t tip its hand in quite the dramatic way that Northwest Austin did — perhaps because three of the justices skeptical of Holland didn’t join the majority opinion and were somewhat at odds with one another as to the nature of the constitutional problem. Still and all, Bond has meaningfully changed expectations as to the scope of congressional power. The Court has inaugurated a period of heightened doctrinal uncertainty as to Congress’s authority to implement treaties. Potentially affected parties will adjust their behavior as they see fit, in anticipation of a possible next case.

It’s more difficult to say whether this distinctive brand of constitutional avoidance is justifiable. In terms of enhancing judicial predictability and minimizing transition costs, the doctrine of one last chance looks pretty good. But in lowering the costs of legal change, the doctrine likely increases the frequency of both threatened and actual disruptions. The doctrine also calls into question the Court’s supposedly reactive judicial role, by converting a core principle of judicial restraint into a means of judicial empowerment.