Passive Virtues Versus Aggressive Litigants: The Prudence of Avoiding a Constitutional Decision in Snyder v. Phelps

BY Jonathan S. Carter

In his seminal work on the functions of the federal judiciary, Alexander M. Bickel advocated what he called the “passive virtues” of judicial restraint and the avoidance of unnecessary constitutional decision-making. The avoidance doctrine is a prudential principle that instructs federal courts to refrain from ruling on a constitutional issue if non-constitutional grounds exist to dispose of the case. Justifications for the doctrine are many, but often center on the “final and delicate nature” of judicial review, the need to maintain the legitimacy and credibility of the federal judiciary, and the “paramount importance of constitutional adjudication.” As Justice Brandeis famously quipped, “the most important thing we do is in ‘not doing.’ ” Thus, avoidance is a fundamental tenet in the jurisprudential canon.

Against such passive virtues, however, must be balanced the traditional precept that litigants are “masters of their complaints,” wielding a great deal of autonomy and control over which issues to bring before the court. The question thus arises: to what extent should federal courts permit aggressive litigants to deliberately manipulate the issues on appeal and thereby control whether a federal court decides a constitutional question?

In Snyder v. Phelps, the United States Court of Appeals for the Fourth Circuit reviewed a five million dollar plaintiff’s verdict in an action brought by the father of a soldier killed in Iraq against Fred Phelps and his fundamentalist Westboro Baptist Church (“WBC”) alleging intentional infliction of emotional distress, intrusion upon seclusion, and conspiracy after the church picketed the soldier’s funeral with signs stating “Fag Troops,” “Thank God for Dead Soldiers,” and “You’re Going to Hell.” The court reversed the judgment, concluding that imposing tort liability contravened the defendants’ constitutionally protected speech under the First Amendment. In reaching its decision, however, the court specifically refused to address whether reversal was warranted on the non-constitutional grounds of insufficiency of the evidence. Although insufficiency was raised by amicus, the court reasoned that because the Phelpses only pressed the constitutional question in their appellate briefs, the sufficiency issue had been waived and it was therefore “absolutely necessary” to resolve the First Amendment question to dispose of the appeal. Thus, the Phelpses’ aggressive litigation strategy, rather than the court’s own prudential obligations, ultimately determined whether the federal court would reach a difficult and controversial constitutional question.

This Recent Development argues that the court’s refusal to consider non-constitutional grounds for disposing of this case was unjustified and constituted an abdication of the court’s self-imposed jurisprudential obligation to avoid unnecessary constitutional adjudication.

DOWNLOAD PDF | 89 N.C. L. Rev.326 (2010)