Document Type

Article

Publication Date

2009

Abstract

One recurring theme of the Roberts Court's jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. According to the Court, such as-applied claims are "the basic building blocks of constitutional adjudication."1 This preference for as-applied over facial challenges has surfaced with some frequency, across terms and in contexts involving different constitutional rights, at times garnering support from all the Justices. Moreover, the Roberts Court has advocated the as-applied approach in contexts in which facial challenges were previously the norm, suggesting that it intends to restrict the availability of facial challenges more than in the past.2

Unfortunately, the Roberts Court has not matched its consistency in preferring as-applied constitutional adjudication with clarity about what this preference means in practice. The Court itself has noted that it remains divided over the appropriate test to govern when facial challenges are available, with some justices arguing that facial challenges should succeed only where a challenged measure is "unconstitutional in all of its applications" and others insisting on a somewhat lower threshold.3 Equally or more important, the Court has made little effort to describe the contours of asapplied litigation and has justified its preference for as-applied claims on diverse grounds that yield different implications for the types of such claims litigants can bring. At times, the Court has invoked the current lack of evidence about how a measure will actually operate and the dangers of speculative adjudication, suggesting that it identifies as-applied challenges with post-enforcement actions. On other occasions, the Court has concluded that the challenged measure is plainly constitutional most of the time and reserved the as-applied option for the rare instances when constitutional issues might arise, implying that what differentiates an as-applied action is its narrow scope. The Roberts Court also appears to use asapplied challenges strategically, in particular as a device to evade recent precedent with which it disagrees, thereby raising a question about whether its employment of the facial/as-applied distinction has a principled coreand about whether its emphasis on this distinction will fade over time, as the Court gradually shapes the contours of governing constitutional law.

Assessing the practical import of the Roberts Court's facial/as-applied jurisprudence on constitutional litigation is therefore difficult. If the Court means to exclude pre-enforcement challenges or require that specific applications of a measure be challenged one at a time, its rejection of facial challenges in favor of as-applied claims will in practice raise substantial impediments to asserting constitutional rights in federal court. Such a restrictive approach to as-applied challenges would also mark a notable deviation from existing precedent. An examination of the Roberts Court's recent decisions, however, reveals that they do not go so far and do not require such a narrow reading of what constitutes an acceptable as-applied challenge. Instead, the Roberts Court's resistance to facial challenges is largely in keeping with longer-term trends in the Supreme Court's jurisprudence- with respect to the Court's understanding of what constitutes an asapplied challenge, the scope of the Court's remedial authority to carve away a measure's unconstitutional dimensions, and strategic use of the facial versus as-applied distinction.

What sets the Roberts Court apart is its understanding of the substantive scope of particular constitutional rights. Not surprisingly, that substantive understanding plays a major role in determining the Court's rejection (and acceptance) of facial challenges in different contexts. As a result, to the extent that these decisions signal greater obstacles to assertion of certain constitutional rights in the federal courts, those obstacles likely result as much, if not more, from retraction in the substantive scope of those rights as from general jurisdictional rules regarding the appropriate form of constitutional adjudication.

In what follows, I begin by giving an overview of the Roberts Court's jurisprudence on facial and as-applied challenges. I then turn to distilling the implications of these decisions for individual rights adjudication in the federal courts, focusing on the Court's understanding of as-applied challenges, its approach to severability and remedial authority, and the role played by substantive constitutional law.

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