Opinion

JUSTICE O'CONNOR, concurring in part and concurring in the judgment.

For the reasons given in Parts I-III of the Court's opinion, which I join, I agree with the Court (and the Attorney General) that the Attorney General's scope-of-employment certifications in Westfall Act cases should be judicially reviewable. I do not join Part IV of the opinion, however. That discussion all but conclusively resolves a difficult question of federal jurisdiction that, as JUSTICE GINSBURG notes, is not presented in this case. Ante, at 435. In my view, we should not resolve that question until it is necessary for us to do so.

Of course, I agree with the dissent, post, at 441, that we ordinarily should construe statutes to avoid serious constitutional questions, such as that discussed in Part IV of the Court's opinion, when it is fairly possible to do so. See United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994); Rust v. Sullivan, 500 U. S. 173, 223-225 (1991) (O'CONNOR, J., dissenting). And I recognize that reversing the Court of Appeals' judgment in this case may make it impossible to avoid deciding that question in a future case. But even such an important canon of statutory construction as that favoring the avoidance of serious constitutional questions does not always carry the day. In this case, as described in detail by the Court, ante, at 423-434, several other important legal principles, including the presumption in favor of judicial review of executive action, ante, at 424, the prohibition against allowing anyone "'to be a judge in his own cause,'" ante, at 428 (quoting The Federalist No. 10, p. 79 (C. Rossiter ed. 1961) (J. Madison)), the peculiarity inherent in concluding that Congress has "assigned to the federal court only rubber-stamp work," ante, at 429, and the "sound general rule that Congress is deemed to avoid redundant drafting," post, at 444 (SOUTER, J., dissenting); ante, at 432, and n. 8, point in the other direction. The highly unusual confluence of those principles in this case persuades me that, despite the fact that the dissent's reading has the virtue of avoiding the possibility that a difficult constitutional question will arise in a future case, reversal is nonetheless the proper course.