Scotus Postmortem: Are Facial Challenges Going the Way of the Dodo?

[WSJ_law_blog]

As baseball fans, you know what we love? We love the postseason-wrapup article that Roger Angell writes every year for the New Yorker. (Here’s his 2003 version, the only one our cursory Google search turned up.) The article is always brilliantly written and because it seems to appear weeks after the World Series ends, in awful, dark November, it serves as a welcome reminder of sunnier, happier times.

We were reminded of Angell’s annual piece today when we stumbled on Marcia Coyle’s amazingly thorough wrap-up of the Supreme Court term that ended in June. It’s a great retrospective for anyone and it just may bring tears to the eyes of hard-core Scotus junkies already nostalgic for June 2008. Coyle tackles the Court’s recent pro-business tilt, its newfound love of preemption cases and the effects an Obama or McCain victory will likely have on the Cour.

Coyle spills a good deal of ink on something we’ve honestly never thought about — the issue of facial challenges, or attacks that attempt to strike down laws in their entirety. Turns out, according to Coyle, the Roberts Court isn’t a fan of the facial challenge, preferring so-called “as-applied” challenges, in which justices examine a law only as applied to a certain set of facts. “I think this is John Roberts’ chief legacy so far,” said Alan Morrison, special counsel to Fair Elections Legal Network, to the NLJ. “The Court is saying, ‘We are going to be very skeptical of facial challenges and demand a high level of evidence. Without knowing who is disadvantaged, how many are disadvantaged and the level of disadvantage, we are not going to overturn the statute.’”

Why is this happening? Pepperdine’s Douglas Kmeic thinks it’s part of the Chief Justice’s desire to move away from 5-4 splits. Still, Kmeic questioned what is achieved by the rulings in the end. “You get a general discussion of the meaning of the statute, which can be helpful, but you also get a remand to the lower court,” he said. “The proof will be in pudding as to how the lower courts react. Do they take the hint from the consensus opinion or continue to go their own way? We don’t have a representative sample on that yet.”

Photo: AP