NORTH CAROLINA LAW REVIEW Volume 89 | Number 1 Article 10 12-1-2010 Passive Virtues versus Aggressive Litigants: The Prudence of Avoiding a Constitutional Decision in Snyder v. Phelps Jonathan S. Carter Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Jonathan S. Carter, Passive Virtues versus Aggressive Litigants: The Prudence of Avoiding a Constitutional Decision in Snyder v. Phelps, 89 N.C. L. Rev. 326 (2010). Available at: http://scholarship.law.unc.edu/nclr/vol89/iss1/10 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Passive Virtues versus Aggressive Litigants: The Prudence of Avoiding a Constitutional Decision in Snyder v. Phelps* INTRODUCTION 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.2 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."3 As Justice Brandeis famously quipped, "the most important thing we do is in 'not * @ 2010 Jonathan S. Carter. 1. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 111-29 (2d ed. 1986). 2. See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) ("The Court will not pass 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."); Pearson v. Callahan, 129 S. Ct. 808, 821 (2009) (endorsing unanimously the avoidance principle as articulated by Justice Brandeis in Ashwander); Ricci v. DeStefano, 129 S. Ct. 2658, 2672 (2009) (refusing to reach a constitutional claim in a controversial case because petitioners' statutory claim would provide relief and noting that " '[n]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case' " (quoting Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam))); Clark v. Martinez, 543 U.S. 371, 381 (2005) (discussing the avoidance canon in the context of statutory interpretation and noting "one of the canon's chief justifications is that it allows courts to avoid the decision of constitutional questions"). For a detailed analysis of the avoidance doctrine and a critique of its inconsistent application, see generally LISA A. KLOPPENBERG, PLAYING IT SAFE: How THE SUPREME COURT SIDESTEPS HARD CASES AND STUNTS THE DEVELOPMENT OF THE LAW (2001). 3. Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L. REV. 1003, 1004 (1994); see also Rescue Army v. Mun. Court, 331 U.S. 549, 571 (1947) (discussing the various justifications of the constitutional avoidance doctrine); Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C. L. REV. 847, 857 (2005) ("The principle of constitutional avoidance has a long and distinguished pedigree and is grounded in the recognition that constitutional interpretation and judicial review are delicate functions."). 2010] SNYDER V. PHELPS 327 doing.' "4 Thus, avoidance is a fundamental tenet in the jurisprudential canon.5 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.6 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.o 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,12 the court reasoned that because the Phelpses only pressed the constitutional question in their 4. ALEXANDER M. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS 17 (1957). 5. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 49- 53 (3d ed. 2006). 6. Kloppenberg, supra note 3, at 1034; see also Greenlaw v. United States, 554 U.S. 237, 243 (2008) ("In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present."). 7. 580 F.3d 206 (4th Cir. 2009). The United States Supreme Court recently granted certiorari. See Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 78 U.S.L.W. 3395 (U.S. Mar. 8, 2010) (No. 09-751). 8. Phelps's picketers were not accusing the deceased soldier of being a homosexual, but rather "used [Synder's] funeral to spread their message that God is punishing the United States for its tolerance of homosexuality by killing its soldiers." Adam Liptak, Justices Take Up Funeral-Protest Case, N.Y. TIMES, Oct. 7, 2010, at A21, available at http://www.nytimes.com/2010/10/07/us/07scotus.html?_r=1. 9. Snyder, 580 F.3d at 212-14. 10. Id. at 226. 11. Id. at 216. 12. See Amicus Curiae Brief of the Thomas Jefferson Ctr. for the Protection of Free Expression at 15-30, Snyder, 580 F.3d 206 (No. 08-1026). 328 NORTH CAROLINA LAW REVIEW [Vol. 89 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.13 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. As the defendant-appellants deliberately did not brief the non-constitutional issues, the Phelpses were able to force a ruling on whether their widespread funeral protests and anti-homosexual demonstrations were protected by the First Amendment.14 By refusing to apply the avoidance principle, the court effectively handed over to the litigants the discretionary power to control if and when the federal courts will expend their judicial capital in deciding a constitutional issue." This poses serious dangers where litigants such as the Phelpses, notorious for their long history of abusive litigation practicesl6 and repeated proclamations that "God Hates America," "America is Doomed," and "Thank God for 9/11,"17 have demonstrated little or no interest in preserving the integrity of our nation's modern institutions, including the federal judiciary." Thus, 13. Snyder, 580 F.3d at 217 n.9. 14. As explained infra notes 29-35 and accompanying text, Fred Phelps and his Westboro congregation have conducted similar protests at soldiers' funerals all over the country to draw attention to their message that "God hates homosexuality and hates and punishes America for its tolerance of homosexuality, particularly in the United States military." Id. at 211. 15. See Kloppenberg, supra note 3, at 1033-34; Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447, 471 (2009) ("[C]ourts must retain control of the interpretive process and thus cannot cede to the parties the sources and arguments that will be used to interpret statutory or constitutional texts, particularly when doing so could expand the judicial role beyond its constitutional parameters.... An inflexible norm against party presentation would threaten this judicial independence by giving the parties, and not the courts, control over judicial pronouncements."). 16. See S. Poverty Law Ctr., Halting Abusive Lawyers, INTELLIGENCE REP., Spring 2001, at 60, 60, 64, available at http://www.splcenter.org/get-informedlintelligence- report/browse-all-issues/2001/spring/halting-abusive-lawyers (describing abusive litigation practices by Fred Phelps and others in the Phelps family). 17. Westboro Baptist Church, Thank God for 10.9 Million Verdict, GODHATESFAGS.COM (Oct. 31, 2007), http://www.godhatesfags.com/fliers/archive/2007 1031_thank-god-for-verdict.pdf. 18. See Kloppenberg, supra note 3, at 1033-34 ("By not pressing nonconstitutional claims on appeal, litigants can easily evade the last resort rule and force courts to render constitutional rulings.... Litigants, however, will have no incentive (and certainly no 2010] SNYDER v. PHELPS 329 the decision in Snyder reflected an abdication of the court's prudential duty of self-restraint in avoiding constitutional questions,19 and it ultimately provided WBC the perverse opportunity to extract from the court an opinion on the constitutional legitimacy of their outrageous demonstrations at military funerals across the nation.