In U.S. constitutional law, the last resort rule is a largely prudential rule which gives a federal court the power to avoid a constitutional issue in some circumstances. It is one the seven rules of the constitutional avoidance doctrine established in Ashwander v. Tennessee Valley Authority (1936) and requires that the Supreme Court of the United States to "not [rule] upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. ... [I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter."
The First Application
Brandeis cited two examples in Ashwander of the "most varied application" of the last resort rule. First, as between two potential grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will only decide the latter.Ashwander, 297 U.S. at 347. To the extent the question involves statutory construction and a plausible interpretation of the statute might obviate the need for constitutional review, this example replicates the seventh rule of the avoidance doctrine.
To illustrate this first application, Brandeis relied primarily on Siler v. Louisville & Nashville Railroad Co.213 U.S. 175 (1909). In Siler, a railroad company challenged an order by the Kentucky railroad commission setting maximum rates on commodities transported by rail within the state.Id. at 176-77. The company asserted a takings claim and a Commerce Clause claim under the United States Constitution, as well as state law claims, including a claim that the commission had exceeded its statutory authorization in making such an order.Id. at 177. The Court itself proceeded to review the state law claims, although Kentucky's highest court had never construed the pertinent statute. The Court concluded that the commission had exceeded its statutory authority in issuing the challenged order. Id. at 194-96. The Supreme Court upheld the lower federal court's order enjoining enforcement of the maximum rate order. The Court indicated, however, that the lower court should have enjoined the rate order on state law grounds, without reaching the federal constitutional grounds.Id. at 191.
The Court in Siler confirmed that once the lower court properly determined that it had federal question jurisdiction, the court had the right to decide either all questions or only the state law questions. The Siler Court stated that where a case can be decided without reference to questions arising under the federal Constitution, that course is "usually pursued and is not departed from without important reasons."213 U.S. at 193. The Court declared it better to decide the case with regard to the construction of the state statute, and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.The only other case cited by Brandeis for the first application of the "last resort rule" is Light v. United States, 220 U.S. 523, 538 (1911), in which the Court followed the principle of avoiding a constitutional issue by ruling on an alternative ground, relying on the Siler formulation. Both cases involved claims that originated in federal courts seeking injunctive relief under an Ex parte Young theory. Those types of actions particularly troubled Justice Brandeis because they could involve intrusive federal court orders and federalism tensions.
The Siler Court offered no case precedent or doctrinal ground for this policy decision. The discretionary nature of the Court's decision limits the extent to which Siler serves as a primary basis for an absolute last resort rule. After recognizing the lower court's authority to decide the constitutional questions, the Court decided to follow the "usual course" of avoiding such questions if questions of local law would resolve the dispute. This purely prudential formulation of the rule allows courts to dispense with the rule for "important reasons." 1 Although Brandeis prefaced his avoidance doctrine discussion in Ashwander by casting the seven rules as prudential, his formulation of the last resort rule omits this "important reasons" qualification. Thus, an evaluation of the proper scope of the last resort rule requires a determination of whether the qualifying phrase should be employed, or whether the rule should be viewed as an absolute.See Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941). The Pullman Court refused to follow its method of disposing of the issues in Siler -- rather than decide the state issues itself, the Court sent the case back to the state court via abstention.
"Pullman abstention" represents the most prominent development of this initial application of the last resort rule after Ashwander.
Brandeis' Second Application of the "Last Resort Rule"
The second application Brandeis furnished to demonstrate the last resort rule in Ashwander is the adequate and independent state ground doctrine: "Appeals [to the United States Supreme Court] from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground."297 U.S. at 347. When reviewing judgments of state courts, the United States Supreme Court only reviews questions of federal law.Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875). State courts are obviously not inhibited by Article III's case or controversy requirement and do not necessarily follow the last resort rule in their jurisdictional limitations. See, e.g., DeFunis v. Odegaard, 529 P.2d 438, 444 (Wash. 1974) (Washington court declined to follow federal rules on mootness because the case presented "a broad issue of substantial public import" appropriate to resolve merits of dispute). But see Linde, supra note 72, at 38 ("Every state supreme court, I suppose, has declared that it will not needlessly decide a case on a constitutional ground if other legal issues can dispose of the case."). The Court will decline to hear a case if an adequate and independent state ground supports the judgment of the state court.See, e.g., Michigan v. Long, 463 U.S. 1032 (1983) (requiring Supreme Court review unless the state court judgment makes a clear statement that the judgment relies on an adequate and independent state ground deemed sufficient to support judgment). The Court reasons that, if a state ground independently supports the judgment, a decision by the Court on federal law grounds will have no effect on the outcome of the case and will amount to an advisory opinion.See, e.g., Herb v. Pitcairn, 324 U.S. 117, 126 (1945) ("if the same judgment would be rendered by the state court after we corrected its views of federal law, our review could amount to nothing more than an advisory opinion").
Justifications for the last resort rule
The Supreme Court has provided six closely related justifications for the general doctrine of avoiding constitutional questions, noting their grounding in "the unique place and character . . . of judicial review of governmental action for constitutionality."
A "Delicate" and "Final" Function
The Court has often called judicial review of legislative acts the most important and delicate of its responsibilities.See, e.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345 (1936) (referencing other cases to support the claim for the "great gravity and delicacy" of this function). While Brandeis acknowledged the Court's "solemn dut[y]" to review the validity of legislative acts, he too cautioned that such "power is the ultimate and supreme function of courts." BICKEL, supra note 7, at 7 (unpublished Atherton Mills draft quoting Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339, 345 (1892)); see also Poe v. Ullman, 367 U.S. at 497,509 (1961) (Brennan, J., concurring in judgment) (until the true dispute regarding large scale birth-control clinics becomes ripe, "this Court may not be compelled to exercise its most delicate power of constitutional adjudication"). The Court's characterization of judicial review of legislative acts as a "delica[te]" function, "particularly in view of possible consequences for others stemming also from constitutional roots," fundamentally justifies the general avoidance doctrine.Rescue Army, 331 U.S. at 571. The Court has only discussed the six justifications in terms referring to the general policy of avoiding unnecessary decision of constitutional questions rather than in terms of the last resort rule. An evaluation of the force of this assertion as a justification for avoiding constitutional questions must be linked to evaluation of a second justification offered for the avoidance doctrine, that such review is a "final" function. If the Court renders a final, binding conclusion as to constitutional interpretation each time it speaks on a constitutional issue, the arduous task of amending the Constitution may provide the only counter to the Court's ruling. If, however, the Court acts as more or less an equal participant with other political actors in an ongoing dialogue, those other non-judicial actors can reinterpret and reapply a constitutional provision.
The Judiciary's Limitations
The avoidance doctrine is also premised on "the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement."Rescue Army v. Municipal Court of L.A., 331 U.S. 549, 571 (1947). Additionally, federal courts are vulnerable to the extent their jurisdiction and the work of their judges are subject to control by the other branches.Avoiding constitutional adjudication, in which the Court might irritate Congress by striking down statutes, protects the Court from congressional retaliation in the form of frequently proposed limits on federal jurisdiction. Congress can contribute to increased federal judicial workload, attempt to "pack" the court, and, in general, make life miserable for federal judges. See CHEMERINSKY, supra note 38, at 146-51; FRANKFURTER DIARIES, supra note 45, at 86 (Justice Jackson noted that the Court "is subject to being stripped of jurisdiction or smothered with additional justices"); Louis L. Jaffee, Mr. Justice Jackson, 68 HARV. L. REV. 940 (1955) (interview with Justice Jackson including comments on Court's vulnerability). Proponents of avoidance techniques such as the last resort rule believe that the federal judiciary must exercise its powers cautiously to conserve the fragile credibility of the least dangerous branch.n186 BICKEL, at 201-68; CHEMERINSKY, at 39 (influential scholars "contend that federal courts generally depend on the other branches to voluntarily comply with judicial orders and that such acquiescence depends on the judiciary's credibility") (citing BICKEL, supra note 57 and JESSEE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 55-59 (1980)); see also Daniel O. Conkle, The Legitimacy of Judicial Review in Individual Rights Cases: Michael Perry's Constitutional Theory and Beyond, 69 MINN. L. REV. 587, 588 (1985). One of the basic underpinnings of judicial restraint is the concept of husbanding judicial resources to preserve the federal judiciary's credibility: "The indispensability of husbanding what powers one had, of keeping within bounds if action is not to outrun wisdom." Freund, Introduction to BICKEL, supra note 7, at xvii.