Abortion, Section 5 and Facial Challenges

[Samuel Bagenstos]

I think Marty is definitely on to something.  While working on Lane and Georgia, one of my operating premises was that the facial aspect of the invalidation in Boerne and Florida Prepaid  was essentially unthinking -- that the justices in the majority in those cases hadn't ever been forced to confront the tension between those facial invalidations and their frequent invocations of Salerno in individual rights cases.  None of the litigants in those cases had argued for upholding the statute on an as-applied basis, and when Justice Stevens made as-applied noises in his Florida Prepaid dissent, the late Chief Justice's opinion did not even respond.  I think what Lane and Georgia do is move towards normalizing Section 5 jurisprudence so that the justices' usual as-applied approaches are employed here as well:  When forced to confront the tension, the conservative justices went for as-applied review all around.  (That Ayotte was pending at the same time as Georgia certainly made the stakes clear to them -- though I think the stakes were pretty clear in Lane as well.)

What's interesting is that the four more liberal justices went readily along with the as-applied approach in Ayotte -- though note that the Court doesn't invoke the "no set of circumstances" language from Salerno.  I think this is in part about legal form -- you really just can't avoid as-applied adjudication -- but also about the "careful," "lawyerly" nature of this Court (scare quotes not because they're not careful and lawyerly, but because what's important for my purposes is that that's how they see themselves). 

Marty's last paragraph is all too apt, which is what may deter some of us from trying to write in this area.  But I'd note that Gillian Metzger's recent Columbia Law Review piece is really required reading on this issue as well.

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Samuel R. Bagenstos
Professor of Law
Washington University School of Law
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Personal Web Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> <marty.lederman at comcast.net> 1/18/2006 10:46 AM >>>
After today's unanimous decision in the abortion case (http://scotus.ap.org/scotus/04-1144p.zo.pdf), and last week's unanimous decision in Sam's section 5 case, is it possible we're seeing a major shift in the way the Court deals with facial challenges?  Put those decisions together with Lane, and Booker, and Sabri, and Salinas, etc., and it appears increasingly as if it's the resurrection of Raines and Brockett (both prominently cited in today's opinion) -- where the Court is reluctant to invalidate statutes on their "face" but will instead, where possible, carve out sub-categories of applications that either are or are not constitutional, and limit its holdings to those sub-categories (which are fairly arbitrarily defined -- e.g., where there is a nexus to federal funds (Salinas); where there are allegations of constitutional violations (Georgia); courthouse-access cases (Lane); one title of a statute to the exclusion of others (Garrett); cases where the statute would imperil a woman's health (Ayotte); etc.)

This may call into question the sort of facial invalidation we saw in Casey and Boerne and Florida Prepaid, where the Court was unwilling to segregate the constitutionally problematic applications from the unobjectionable applications, for fear that to do so would encourage legislatures to act recklessly and imprecisely, casting the proverbial wide net and expecting the courts to do the hard work of deciding which fish are "legal" catches.  (O'Connor acknowledges this problem, too, in today's case, with the typical cite to Reese.)   The current Court apparently is either skeptical that facial invalidation will deter such legislative overreaching, or simply resigned to the prospect of having the courts act as statutory surgeons.

If it weren't for Raich, I'd say that the next obvious candidate for such treatment is the Commerce Clause:  Is the Gun Free Schools Zones Act constitutional as applied to weapons that have traveled in interstate commerce or to guns being held for sale?  Is VAWA's civil action constitutional as applied to a rapist who crossed state lines?  If it's good enough for section 5 (Raines, Lane, Georgia) and for the Spending Clause (Salinas, Sabri), why not Commerce?

In any event, it's the stuff of 1001 law review articles, all of which will have trouble living up to the very high post-Florida Prepaid, pre-Lane standard set by Richard Fallon's 2000 Havard Law Review article.