That work was instead done by the federalism clear statement principle and the mischief rule. Moreover, unlike Northwest Austin and NFIB, the majority opinion in Bond contained no lengthy exegesis on why the statute would be unconstitutional if interpreted according to its plain text.
Although the Elonis majority opinion did not rely on the mischief rule or on constitutional law-based canons such as the rule of lenity or the federalism clear statement principle to skirt the constitutional issue--as had the Court's opinions in Yates, Adoptive Couple, and Bond--it too sought to tweak the statute without admitting that it was adding a limitation not found in the statute's text.
Part III.B.2 similarly analyzes the Roberts Court's use of the "mischief" rule in a number of its later-Term cases, suggesting that it too is a tool of "passive avoidance." As explained below, the mischief rule enables the Court to adopt a statutory construction that conflicts with the statute's apparent plain meaning--while still claiming fidelity to Congress's intent and avoiding complicated constitutional questions.
That said, the Roberts Court's use of the mischief rule rule in recent years differs in certain important respects from how the Supreme Court has traditionally employed the rule.
The Court's embrace of the mischief rule in recent cases may be, at least in part, a strategic move designed to counter critics' charges of judicial activism following the aggressive use of avoidance in its early-Term cases.
(320) Alternately, as in Elonis, the Court may simply read a requirement or limitation into the statute that has the effect of avoiding the constitutional issue, without reference to the mischief rule or to the constitutional difficulty.
The main rules of the functional approach are the Mischief Rule as formulated in the Heydon's Case (41) and the Golden Rule.
The Mischief Rule was formulated in this scientific formulation in Heydon's Case (64):
Illustrations abound where the Mischief Rule has been applied.
The Supreme Court dismissed the appeal holding that the rule was clear and free from ambiguity that only directors who received fees as such were disentitled from appearing and that in applying the mischief rule the construction of a statutory provision will not be strained to include cases plainly omitted from the natural meaning of the words of the statute.
Hence the Mischief Rule can only be followed when there has been some ambiguity.
Nevertheless, Zander (77) opines that the Mischief Rule is a very great improvement on the other two (78) for "language cannot be properly understood without some knowledge of the context".