Wednesday, July 2, 2008
ABA Journal: Supreme Court Report: About Face, by David G. Savage:
The U.S. Supreme Court under Chief Justice John G. Roberts Jr. has been sending a message to lawyers who want to challenge state laws as unconstitutional. It goes like this: Show us the proof. Be specific. And if you want us to throw out an entire law because it may infringe the rights of a few people, you may be wasting your time.
Here’s another way to say it: Facial challenges are out. As-applied challenges are in.
The article discusses the particular impact of this trend on abortion cases. Shortly after Gonzales v. Carhart was decided, I wrote this post on the decision's implications for facial vs. as-applied challenges.