Justice Thomas

While the Court as a whole seems to have ratcheted down its use of the avoidance canon in recent Terms, Justice Thomas has been an outlier,

224. Hooper v. California, 155 U.S. 648, 657 (1895); see also, e.g., Gonzales v. Carhart, 550 U.S. 124, 153 (2007) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)).

225. United States v. Clark, 445 U.S. 23, 27 (1980); see also, e.g., Schneider v. Smith, 390 U.S. 17, 26-27 (1968); Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 749-50 (1961) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).

226. See 134 S. Ct. 1710, 1718-22 (2014).

227. Id. at 1725-26; see also U.S.CONST.amend. VIII (“Excessive bail shall not be required, nor

excessive fines imposed . . . .”).

228. The Court’s treatment of the avoidance canon and the constitutional issue in

Descamps v. United States, 133 S. Ct. 2276 (2013), was similar to its treatment of the canon

in McDonnell and Paroline. As in those cases, the Court in Descamps turned to avoidance only after concluding that the statute’s text, its legislative history, and precedents involving similar statutes all supported the Court’s chosen construction. See id. at 2283-89. More importantly, the Sixth Amendment concern was not the decisive factor in the Court’s decision to construe the statute the way it did, but rather just one of many interpretive considerations. See id.

229. See Voisine v. United States, 136 S. Ct. 2272, 2290-91 (2016) (Thomas, J., dissenting); Mathis v. United States, 136 S. Ct. 2243, 2253 (2016); Taylor v. United States, 136 S. Ct. 2074, 2082-85 (2016) (Thomas, J., dissenting); Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2551 (2015) (Alito, J., dissenting); B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1316-18 (2015) (Thomas, J., dissenting).

559

invoking the canon in six concurring or dissenting opinions since 2012.230 _In

two of these opinions, he discussed the constitutional difficulty at issue extensively, and advocated a strained, or at least less than plain, reading of the statute in order to avoid that difficulty. One of these opinions was Adoptive

Couple, discussed above.231 _{Whereas the majority opinion in Adoptive Couple}

ignored the federalism concerns created by the interplay between ICWA and state custody laws, Justice Thomas authored a concurring opinion that discussed those concerns in detail and relied heavily on the avoidance canon to justify construing ICWA not to apply to biological fathers who never had custody of their children.232

The other case was Arizona v. Inter Tribal Council of Arizona, Inc.233 _{In Inter}

Tribal Council, the Court held that the National Voter Registration Act

(NVRA), which requires states to “accept and use” a federal registration form, preempts Arizona state laws that require voters to present additional information when they register.234 _{Justice Thomas dissented, arguing that the}

NVRA should be construed to require only that Arizona “accept and use” the federal form as part of its voter registration process, and to leave the state free to request any additional information it determines necessary to ensure the integrity of the voter registration process.235 _{He based this construction almost}

entirely on the avoidance canon. At the outset of his opinion, Justice Thomas observed that the interpretations advanced by the parties “are both plausible” and then launched into a lengthy discussion about the meaning of the Constitution’s Voter Qualification Clause.236 _{Ultimately, he concluded that the}

Constitution gives states the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied—and that in order to avoid violating this Clause, the NVRA must be construed not to preempt Arizona’s voter registration laws.237

230. See supra note 214.

231. See supra Part II.A.2.

232. See Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2566-71 (2013) (Thomas, J., concurring).

233. 133 S. Ct. 2247 (2013).

234. See id. at 2251, 2260; see also National Voter Registration Act of 1993, Pub. L. No. 103-31, 107 Stat. 77 (codified as amended at 39 U.S.C. §§ 3627, 3629 (2017); and 52 U.S.C. §§ 20501- 20511 (2017)).

235. See Inter Tribal Council, 133 S. Ct. at 2262 (Thomas, J., dissenting).

236. See id. at 2263-68; see also U.S.CONST.art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen . . . by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”).

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Justice Thomas’s opinions in Adoptive Couple and Inter Tribal Council read very much like the early Roberts Court opinions discussed in Part I above. Like those early-Term opinions, these two Justice Thomas opinions placed the constitutional issue front and center, discussed the issue at length, and relied on it as the decisive factor in determining how to construe the statute. Moreover, Justice Thomas’s Adoptive Couple concurrence rewrote, or at least strained, the text of ICWA—effectively adding a qualification that parents must have had custody of the child in order to come within the statute’s protections—in much the same way that the opinions discussed in Part I above strained or rewrote the text of the respective statutes.

Despite Justice Thomas’s prominent use of the avoidance canon in a number of solo dissents and concurrences, however, the overall picture that emerges from the Roberts Court is that it seems to have ratcheted down its use of the avoidance canon over the last few Terms. That is, the Court appears to have shifted from an aggressive approach, in which it openly employed the canon to rewrite statutes, to one in which it is willing to rely on the canon only secondarily—to buttress a construction reached through other interpretive tools—and is unwilling to use the canon as a primary justification for its chosen construction. This shift is especially noteworthy in Bond and Elonis, the two later-Term cases discussed in Part II above that were authored by Chief Justice Roberts,238 _{the architect of the Court’s aggressive use of avoidance in nearly all}

of the early-Term cases.239