Troxel

[Michael McConnell]

I am teaching Troxel v. Granville today, and therefore am thinking about the
distinction between facial and "as applied" challenges. Of the six opinions
in the case, Justice Souter's seems to me the most persuasive, at least as a
practical matter. Does anyone have a theory about why the plurality
(O'Connor, Rehnquist, Ginsburg, Breyer) did not join this opinion, but
instead decided the case on an "as applied" basis? It is hard for me to
understand how, under that theory, they avoided a remand.

The Salerno standard for facial challenges is that they cannot succeed if
the statute is susceptible to a constitutional application in some cases
(Stevens adds that the statute must be sustained if it has a "plainly
legitimate sweep," which is a less demanding standard.) Well, obviously the
Washington statute could be applied constiutionally in lots of cases. For
example, in many cases the parents will prevail, which is obviously not
unconstitutional. So what is Souter saying about facial challenges?

Is he saying that facial challenges can succeed if the statutory criteria
are insufficient, without more, for invasion of the protected liberty?  (In
other words, if the trial court enters findings *only* with regard to the
statutory criteria, that will *never* be a sufficient basis, without more,
for invasion of the liberty.)
    -- If that is his theory, is there anything wrong with it? Is it
inconsistent with precedent? (It seems consistent with Chicago v. Morales.)

Or must there be more? In addition to the foregoing, is it essential to
Souter's conclusion that even the mere process (forcing the family to
justify its decision before the state) is an invasion of the interest,
without regard to the outcome of the proceeding?
    -- If that is his theory, is there anything wrong with it?


Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112
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