Ashwander v. Tennessee Valley Authority

It is primarily for Justice Brandies's concurrence, in fact, that Ashwander is remembered. To buttress his assertion that the Supreme Court should sidestep judging the constitutionality of legislation wherever possible, and to help the Court determine what to avoid, Brandeis proposed the following rules:

1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding . . . 2. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it . . . " 3. The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied . . . " 4. 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 . . . 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation . . . 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits . . . 7. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."