Intro.1.2.2.5 What Is Included and Sourced in the Constitution Annotated: Supreme Court Cases on Statutory Claims

While the Court's decisions opining on how to construe a statute1 are generally excluded from the Constitution Annotated, certain cases involving statutory interpretation may be included insofar as constitutional considerations influence the Court's approach to construing legislative text. Some such cases involve the doctrine of constitutional avoidance—i.e., the longstanding interpretative rule followed by the Supreme Court that counsels that when a particular reading of a statute would raise serious doubts about the statute's constitutionality, a court interpreting the statute must first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.2 Other cases involve the construction of statutes intended to parallel or supplement specific constitutional rights. However, as a rule, such cases are included only when the interpretation of the statute is inextricably intertwined with the interpretation of a constitutional provision. Two examples may serve to illustrate this.

The first involves the Religious Freedom Restoration Act of 1993 (RFRA),3 which Congress enacted in the wake of the Court's 1990 decision in Employment Division v. Smith repudiating the methodology used in earlier cases to analyze claims asserting a violation of the Free Exercise Clause of the First Amendment.4 These earlier cases had adopted a balancing test—often referred to as the strict scrutiny test—that weighed whether the challenged action imposed a substantial burden on the practice of religion and, if so, whether the challenged action served a compelling government interest.5 However, the Smith Court rejected that approach, allowing generally applicable laws to apply to religious practices without being subject to strict scrutiny.6 In response, Congress enacted RFRA, which prohibits the federal government,7 as a matter of federal statutory law, from substantially burdening a person's exercise of religion unless the government demonstrates that the challenged action serves a compelling government interest and is the least restrictive means of furthering that interest.8 As a result, while the Court's recent RFRA jurisprudence touches on issues of religious liberty, the test imposed by RFRA is distinct from even the pre-Smith Free Exercise case law and, at bottom, does not interpret the Constitution. As a consequence, while the Constitution Annotated references certain RFRA cases, it does not purport to address RFRA cases in detail.

The second example involves the Electronic Communications Privacy Act of 1986 (Wiretap Act).9 This Act authorizes a judge (after receiving an application from the government) to enter an order allowing for the interception of wire, oral, or electronic communications upon finding probable cause that an individual is committing, has committed, or is about to commit specified offenses.10 The Act does not define what is meant by probable cause. However, courts construing the probable cause requirement in the Wiretap Act have concluded that it is co-extensive with the Constitutional requirements embodied in the Fourth Amendment.11 Thus, if the Court were to rule that the Wiretap Act's probable cause requirement was satisfied in a particular case, this ruling would warrant inclusion in the Constitution Annotated if it rests on grounds that inform our understanding of the Fourth Amendment's probable cause requirement.

Footnotes

  1.  Jump to essay-1Statutory claims in this essay refers to assertions of a legal right grounded in a law passed by a legislative body. Federal courts, including the Supreme Court, do not typically engage in extensive interpretations of state law. Under the doctrine announced in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts are bound to follow state law as announced by the highest state court. Id. at 78. Moreover, the Supreme Court will not review judgments of state courts that rest upon adequate and independent state grounds (i.e., nonfederal grounds). See Klinger v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1871); see also Michigan v. Long, 463 U.S. 1032, 1043 (1983) (holding that the Supreme Court has jurisdiction to review a state court ruling in the absence of a plain statement that the decision below rested on an adequate and independent state ground.). At times, the Supreme Court has even certified questions to the highest court of a state for that court to provide the definitive interpretation of a statute. See, e.g., Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 398 (1988). In short, it is relatively rare for the Supreme Court to attempt to gauge the meaning of a state law. Consequently, questions of federal statutory interpretation comprise the bulk of the Supreme Court's docket. See The Supreme Court 2018 Term, The Statistics, 133 Harv. L. Rev. 412 (2019).
  2.  Jump to essay-2See Crowell v. Benson, 285 U.S. 22, 62 (1932).
  3.  Jump to essay-3Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb et seq.), declared unconstitutional, City of Boerne v. Flores, 521 U.S. 507, 511 (1997).
  4.  Jump to essay-4See 494 U.S. 872 (1990).
  5.  Jump to essay-5See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 210–11 (1972); Sherbert v. Verner, 374 U.S. 398, 408–10 (1963).
  6.  Jump to essay-6See 494 U.S. at 888–89.
  7.  Jump to essay-7As originally enacted, RFRA applied to both federal and state government actions. However, in 1997, the Court struck down the provisions of RFRA that applied to the states as being in excess of Congress's power under Section 5 of the Fourteenth Amendment. See City of Boerne, 521 U.S. at 511.
  8.  Jump to essay-8See 42 U.S.C. §§ 2000bb, 2000bb-1.
  9.  Jump to essay-9Pub. L. No. 99-508, 100 Stat. 1848 (codified at 18 U.S.C. § 2510 et seq.).
  10.  Jump to essay-10See 18 U.S.C. §§ 2518(1) & (3).
  11.  Jump to essay-11See United States v. Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988).