Bench Memos

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The Roberts Court and Facial vs. As-Applied Challenges


While virtually everyone is focused on today’s oral argument in the Second Amendment case, I’d like to draw attention to the ruling that the Court issued today in Washington State Grange v. Washington State Republican Party.  The issue in the case was whether a Washington law providing that candidates for office be identified on the ballot by their self-designated party preference violated the parties’ First Amendment rights.  As the majority opinion states, under the law a “political party cannot prevent a candidate who is unaffiliated with, or even repugnant to, the party from designating it as his party of preference.”


The Court divided 7-2, in an unusual split.  Justice Thomas’s majority opinion holds that the Washington law is not unconstitutional on its face.  After spelling out why facial challenges are disfavored, Thomas explains that each of the objections to the law “depend[s], not on any facial requirement of [the law], but on the possibility that voters will be confused as to the meaning of the party-preference designation.”  But “because [the law] has never been implemented, we do not even have ballots indicating how party preference will be displayed,” and it is conceivable that the ballot could “be printed in such a way as to eliminate the possibility of widespread voter confusion” about the candidates’ self-designations of party preferences.  For example, the ballot “could include prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party.”


Justice Scalia, joined by Justice Kennedy, dissented, on the ground that the law severely burdened the parties’ associational rights.


Like last year’s ruling in the partial-birth abortion case (which I discussed in this essay), this ruling signals, I believe, Chief Justice Roberts’s strong interest in reviving attention to the distinction between facial and as-applied challenges.  There will obviously be disputes over when a facial challenge should succeed (as well as over the proper standard for assessing facial challenges), as the differing majorities today and in the partial-birth abortion case show.  (The only justices in both majorities are Roberts, Alito, and Thomas.)  But this general development is a very encouraging one for the cause of judicial restraint.  As Thomas’s opinion points out, facial challenges “often rest on speculation” and therefore “raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records”; they “run contrary to the fundamental principle of judicial restraint” that courts should neither decide issues before it’s necessary to do so nor formulate a rule broader than required by the facts; and they “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.”

Tags: Whelan


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