Avoiding Constitutional Cases

Abstract

Why does the Supreme Court avoid deciding cases it accepts for review? In this article, I contend that the Court uses procedural access doctrines such as standing, ripeness, and mootness to sidestep constitutional cases when confronted with certain internal and external pressures. Using data from 1946 to 2001, the results suggest that the Court utilizes procedural tools to dismiss constitutional cases when preference heterogeneity on the Court increases and when the justices are confronted with issues about which groups feel strongly and are deeply divided. Although the Court does not appear to be influenced by the threat of political opposition, it is more reluctant to resolve disputes when members of Congress file an amicus brief. The results offer a first glimpse into how often the Court invokes the “passive virtues.” They also have implications for our understanding of agenda setting, decision-making in access cases, and normative constitutional theory.