Facial and As-Applied Challenges Under the Roberts Court

Abstract

One recurring theme of the early 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. 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. Equally or more important, the Court has made little effort to describe the contours of as-applied litigation and has justified its preference for as-applied claims on diverse grounds that yield different implications for the types of as-applied claims litigants can bring.

This essay for a symposium on the future of public rights litigation assesses the practical import of the Roberts Court's facial/as-applied jurisprudence on constitutional rights litigation. I argue that the Roberts Court's resistance to facial challenges is largely in keeping with longer-term trends in the Supreme Court's jurisprudence-with respect both to the Court's understanding of what constitutes an as-applied 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. In particular, despite some language to the contrary, the Court dos not appear to be excluding pre-enforcement as-applied challenges or require that specific applications of a measure be challenged one at a time, requirements that would mark a notable deviation from existing precedent and raise substantial impediments to asserting constitutional rights in federal court. What does set 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 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.