Ashwander rules

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The Ashwander Rules explain how cases get to the United States Supreme Court on a discretionary basis.

Taken from Justice Brandeis' concurrence in Ashwander v. TVA (1936), the Ashwander rules have become the guiding light for some in trying to determine what is and is not available to the court for review:

1. The Court will not anticipate the constitutionality in a friendly, non-adversarial proceeding. (Cases and Controversies)

2. The Court does not anticipate in advance (i.e. without the necessity for hearing) the constitutionality of a question of Constitutional Law/interpretation. (Cases and Controversies, no advisory opinions)

3. The court will not formulate a rule of law broader than the case which is before it. (Obiter Dicta going beyond the case issues is generally frowned upon but “done” all of the time)

4. If possible the Court will dispose of a case on non-constitutional grounds (statutory interpretation is preferred over Constitutional interpretation)

5. The Court will not pass on the validity of a statute on complaint of one who fails to show injury to person or property. (This is an issue of Standing)

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has accepted its benefits. There is little need after all, for the ‘winner’ to challenge the Constitutionality of the law which aids them. (Cases and Controversies) Whenever possible, statutes will be construed so as to avoid a constitutional issue. (Statutory interpretation)

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