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