This is a follow-up to my post yesterday on facial versus as-applied challenges in the Supreme Court. (I told you I was obsessed with this subject.) I have a hypothesis about the apparent extremity of the Court’s doctrine in this area---which makes it nearly impossible for a plaintiff to bring a successful facial challenge, except under the relatively narrow First Amendment overbreadth doctrine: I suspect that the (conservative and perhaps all of the) Justices view facial challenges as a backhanded effort by liberal advocacy groups to get more than they’re entitled to.
Consider that the facial challenge issue frequently arises in death penalty cases and abortion cases. In each context, the (conservative) Justices may reason more or less as follows: These lawyers are categorically opposed to the challenged law. They don’t think the government should be [executing people/regulating this kind of abortion] at all, but they’ve chosen to point to one small alleged defect in the law or one potential defective application of the law as a basis for invalidating the whole thing. They’re asking for more than they’re entitled to, so we’re not going to give them anything.
Is this an ACCURATE account of the strategy of liberal legal advocacy groups? Sometimes, although such groups are hardly monolithic and in order to get into court must represent real clients, who often do care about the actual defective provision or application of the law identified in the complaint. Moreover, the decision to bring a facial rather than (or in addition to) an as-applied challenge often has as much to do with timing as with the relief sought: Advocacy groups bringing a pre-enforcement challenge may have difficulty finding a plaintiff with standing who can point to an imminent concrete application that will violate her rights, but no difficulty finding someone---a doctor who performs abortions, say---who can point to the chilling effect of the law.
Still, if I’m right that the Justices look askance at such cases because they see them as an effort by liberal advocacy groups to leverage small defects into big wins, then those groups would do well to change tactics by framing future cases strictly in as-applied terms, and by seeking narrower relief. For example, a doctor challenging an abortion law on the ground that it is sometimes unduly burdensome under the Court’s precedents could seek to have the law enjoined in just the circumstances that it is unduly burdensome.
This strategy of asking for half a loaf in the hope of getting half a loaf may not succeed either, but it’s hard to see how it could do worse than the current strategy of asking for a whole loaf and getting nothing.Posted by Mike Dorf