Tuesday, April 29, 2008

The Roberts Court on Facial Challenges

Readers of my academic work (all 7 of them) know that I have long been interested (obsessed?) with the question of the circumstances under which a court may hold a law invalid "on its face" rather than or in addition to "as applied" to particular facts. For years, the Supreme Court and lower courts have struggled with this somewhat arcane question, a struggle that has been exacerbated by the fact that it often arises as a threshold issue preliminary to the court's reaching some highly controversial substantive issue involving abortion, the death penalty, flag burning, and the other hot-button matters on which the courts are called to opine. As a result, judges and Justices with strong views on the merits (whether liberal, conservative or other) are tempted to manipulate the facial/as-applied question as a way of helping the case come out the way they want on the merits.

The Roberts Court in the last year has been ESPECIALLY attentive to the facial/as-applied dichotomy, as the recent decisions in Baze (the lethal injection case) and Crawford (the Indiana voter ID case) illustrate. In both cases, the lead opinion makes the same basic move: It rejects a facial challenge to a law or practice on the ground that insufficient evidence has been adduced to warrant complete invalidation but leaves open the possibility that another plaintiff in another case, with different evidence, might be entitled to more narrowly crafted relief. (The Court made the same move in last year's Partial Birth Abortion Ban Act decision, Gonzales v. Carhart.) This move is valid in principle but in practice has dramatic consequences.

Because of their position in the judicial hierarchy, lower federal court judges (with the possible exception of my one-time boss, 9th Circuit Judge Stephen Reinhardt, aka the Chief Justice of the Warren Court in Exile) tend to read Supreme Court tea leaves when deciding cases. Thus, imagine a federal district judge faced with a challenge to lethal injection in a state other than Kentucky or a challenge to a voter ID law in a state other than Indiana. Even though said district judge---and the appeals court panel that will review her decision---has, as a technical matter, been given the room by the Supreme Court to say that based on this new record the challenged law or practice is unconstitutional, reading the sub-text of the Court's opinion in Baze or Crawford the lower court judge is much more likely to play it safe and say, in effect: This record is not so different from the one on which the Supreme Court upheld this or a similar law or practice, so I'm going to uphold the law or practice challenged in my court.

To be sure, that leaves open the possibility that the Supreme Court itself will then find a distinction and permit the invalidation of a law or practice as applied that is similar or identical to one it has previously found valid against a facial attack, but the Court decides so few cases per year that it is unlikely to revisit an issue in this way for many years. (There are a couple of recent exceptions to this principle but it holds generally.) In the context of something like voter registration restrictions---where the relevant time horizon is between now and the November election---this means that an opinion that technically only says "based on this record, this law is not so flawed as to be utterly unenforceable" comes to mean in practice something more like "laws like this are valid in all their applications until we say otherwise."

Posted by Mike Dorf


Nick said...

I couldn't agree more. While I very much like Justice Roberts, I wonder whether his stated goal of deciding cases on the narrowest possible ground(s) may turn out to be problematic. This is certainly a valid principle, but I wonder if its benefits differ widely between the lower courts of appeals and the supreme court (especially in light of the increasingly shrinking docket of the Supreme Court).

It seems to me that the Supreme Court ought to be guiding the lower courts, but Baze, Carhart, the campaign finance law case, and Crawford all seem so narrow as to be practically useless to the lower courts. These decisions feel like more like civil law decisions than ones that should be coming from the Supreme Court.

Sobek said...

"This move is valid in principle but in practice has dramatic consequences."

You call the consequences "dramatic" but not necessarily "bad." As I'm not one of the privileged 7, except to the extent I see your academic work reflected on your blog, I wonder if you can expand on this a little -- how would you deal with the facial/as applied question in the three cases you mentioned, and how would you deal with it in general?

Michael C. Dorf said...

Sobek poses an excellent question, to which I'll give a cryptic response that I'll expand upon tomorrow: I would treat the facial/as-applied distinction as relevant to remedy but not to the threshold question of whether the plaintiff has made out a case. The Court's surprisingly unanimous decision in the New Hampshire abortion parental notification case gestured in this direction but then the Court seemed to go back to its old ways.

Caleb said...

Just as a slight aside, if the Supreme Court is taking fewer and fewer cases, why aren't the Circuit courts taking more liberty? It would seem to me that there is less need to read the tea leaves when you are less likely to be overturned (maybe it's just that I would be a rebellious judge). Is there another factor in play?

egarber said...

I wonder if with Roberts, something else is afoot.

Two examples that aren't about nullifying laws, but that still stand out to me:

1. The case where the Court ruled the party could only make a discrimination claim within 180 days (or whatever it was) of the actual decision to discriminate. (Was that pay discrimination? This is off the top of my head, sorry)

In this case, narrow interpretation, not practical consideration, won out.

2. The case where the Court found against the defendant, even though the trial judge gave him bad information about filing deadlines.

Again, narrowness that squeezes out a larger principle.

I know these aren't the same considerations -- the questions here weren't about whether a law is unconstitutional. But still, they make me wonder if the real goal is to weaken judicial review generally. And depending on the case, there may be different means to get there -- sometimes it's extreme pedantry; at other times it's a study in as-applied scrutiny.

Jamison Colburn said...

The facial/as-applied distinction has always left me a bit puzzled (Mike's articles on it notwithstanding). It turns to an important degree on the nature of the doctrinal test the courts have developed for a particular constitutional right, doesn't it? For example, once the Court had clarified its economic injury-focused test for regulatory takings doctrine (or, what for the Court passes as clarification), and had ruled that a "final determination" from the relevant authority was needed before any land use restriction could "ripen" as such a claim, challenges to the mere enactment of laws or regulations started coming in styled as "facial challenges." See, e.g., Yee v. Escondido, 503 U.S. 519 (1992). That allowed the litigant into court without having to wade through all the red tape of state & local variance/appeals processes. But it also required that litigant to show, according to the Court in Yee, that the law didn't "substantially advance a legitimate state interest," that is, a requirement the Court eventually rezoned as an exclusively substantive due process test. See Lingle v. Chevron USA, 544 U.S. 528 (2005).

In other words, isn't the facial/as-applied distinction really just a function of the judiciary's doctrinal constructions?

Michael C. Dorf said...

Jamie: That IS the thesis of my articles on facial/as-applied challenges, namely that what purports to be a freestanding threshold inquiry is, or should be, much more closely entwined with questions of substantive law and remedy.

Jamison Colburn said...

I knew I filched that confusion from somewhere!

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