Facial and as-applied challenges under the Roberts Court.

• Author: Metzger, Gillian E.

Introduction I. An Overview of the Roberts Court's Facial and As-Applied Case Law A. The 2005-2006 Term B. The 2006-2007 Term C. The 2007-2008 Term II. Implications of the Roberts Court Facial and As-Applied Jurisprudence for Constitutional Litigation A. The Shape of As-Applied Challenges Under the Roberts Court B. Severability Under the Roberts Court C. The Roberts Court's View of the Judicial Role D. The Importance of Substantive Constitutional Law Conclusion INTRODUCTION

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 as-applied 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 as-applied 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 core--and 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 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.

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.

1. AN OVERVIEW OF THE ROBERTS COURT'S FACIAL AND As-APPLIED CASE LAW

   What follows is a description of a number of decisions, broken down by Term, that I consider of particular relevance to tracing the Roberts Court's approach to facial and as-applied challenges. For the most part, these are decisions in which the Court paid express attention to the facial/as-applied distinction, usually arguing that the facial cast of a challenge was inappropriate. It also includes, however, a couple of instances in which the Court did not characterize its approach as falling within the facial or as-applied category yet its analysis was notably facial or as-applied in tone, especially when considered against precedent in the area and claims raised in the case. (4)

   1. The 2005-2006 Term

      The Roberts Court's preference for as-applied over facial constitutional challenges became evident early on, in three decisions issued while Justice O'Connor was still a member of the Court: United States v. Georgia, (5) Ayottev. Planned Parenthood of Northern New England, (6) and Wisconsin Right-to-Life v. FCC (WRTL I). (7) All three are notable primarily for their unanimity and brevity, notwithstanding the contentious issues they addressed: abortion rights, Congress's enforcement power under Section 5 of the Fourteenth Amendment, and campaign finance. The Court's decisions in Georgia and WRTL I indicated the potential advantages of as-applied challenges; in both, the as-applied nature of the claims being brought was central to the Court's willingness to allow the suits at issue to go forward. (8) Only in Ayotte, however, did the facial versus as-applied question get much sustained discussion, and there it arose in terms of the appropriateness of facial invalidation as a remedy rather than the availability of a facial challenge.

      Ayotte involved an effort to have a newly-enacted New Hampshire parental consent statute declared facially unconstitutional because it did not allow a minor to obtain an abortion without prior notice to her parent when an immediate abortion was needed to preserve her health. Writing for a unanimous Court, Justice O'Connor had little trouble concluding that the failure to include a health exception was a constitutional violation, given evidence of medical risk and the Court's precedents emphasizing the need for such health exceptions in abortion restrictions. (9) But she emphasized that this constitutional infirmity need not lead to the statute's being "invalidated ... wholesale," given that "[o]nly a few applications" of the statute that "would present a constitutional problem." (10) Identifying "partial rather than facial invalidation" as "the 'normal rule,'" (11) provided partial invalidation accorded with legislative preferences, the Court remanded for the appellate court to determine if "New Hampshire's legislature intended the statute to be susceptible to such a remedy." (12)

   2. The 2006-2007 Term

      All three of the decisions described above were issued in a period of transition--indeed, in Justice O'Connor's last month on the Court--raising the possibility that their as-applied focus was an interim phenomenon. (13) But the Roberts Court's preference for as-applied analysis has continued to surface, albeit without the unanimity that marked these early decisions. Two prominent examples from the Roberts Court's second term are Gonzales v. Carhart and FEC v. Wisconsin Right to Life (WRTL II). (14) Gonzales involved facial challenges to the constitutionality of the federal Partial-Birth Abortion Ban Act, which sought to prohibit intact dilation and evacuation (D&E) abortions, when the fetus is removed intact. (15) Seven years earlier, in Stenberg v. Carhart, (16) the Court had sustained a facial challenge to a similar Nebraska measure, finding it unconstitutional on two fronts: first, because the Nebraska measure lacked a health exception; and second, because the Court concluded it could also apply to ordinary D&E abortions, the most common method used to perform second-trimester abortions, and therefore created an undue burden on women's access to abortion. (17) In a contentious 5-4 decision, the Court in Gonzales rejected a similar facial challenge. In his opinion for the majority, Justice Kennedy held that the federal ban was more carefully crafted than the Nebraska measure to apply only to intact D&E abortions, emphasizing in particular the federal statute's intent requirements. (18)

      Harder to square with Stenberg was the Court's willingness to sustain the federal ban notwithstanding that it, too, lacked a health exception. In so ruling, Justice Kennedy underscored the existence of medical uncertainty regarding whether the intact D&E procedure...