Submitted to a Candid World

There is a dangerous trend in the current Supreme Court, one that is already devastating our civil liberties and confounding our jurisprudence, with potentially lasting & dangerous consequences. It has already had a searing effect on womens’ reproductive rights and voter registration, and marches on unchecked.

Some background: the Supreme Court reviews two types of challenges to the constitutionality of laws. First, and most commonly, they see “facial” challenges, in which the plaintiff claims that the law is so unconstitutional, that it can never be applied in a constitutional manner. Second, they hear from individual plaintiffs taking exception only to the application of an act to them. The latter is called an “as-applied” challenge.

In the right hands, the as-applied/facial distinction allows a justice to grant a plaintiff just enough relief – i.e., they get their own exception – without going too far and invalidating an entire law. However, a justice can rule the other way, too, finding that the law could conceivably be applied constitutionally, and that an aggrieved individual would have to bring an as-applied challenge. Since an as-applied challenge is often useless (i.e., by the time you litigate your as-applied issue, the damage is already done), the distinction can result in the creation for plaintiffs of a worthless right, as a meaningless consolation prize to losing their case against the law’s constitutionality. Unfortunately, the Supreme Court is engaging in this tricky practice with increasing frequency under Chief Justice Roberts.Facial challenges are often brought because the intangible effects of the law – i.e., their chilling effects, or their effects on society outside of discrete instances – are dangerous. Granting the right to sue on an as-applied basis makes it seem like the Court recognizes that application of the law could be invalid, and seems to grant a degree of respect to these concerns. But where the concerns about the act go to nebulous, society-wide effects, this small comfort fails to take adequate notice of the concerns.

Consider Gonzales v. Carhart. The Supreme Court, in a truly legendary case of deference to sham science, ruled that Congress could ban abortion procedures without providing an exception for cases in which the woman’s health would be harmed by the loss of that right. Yet, the Court provided an as-applied loophole: if not being able to obtain the banned procedure would injure your health, you can always just sue in your own capacity. Surely that’s protection enough. Right? [1]

Wrong. When a woman seeks an abortion, it is necessarily a very private, and very time-sensitive matter. To give the woman a right to sue, only once her rights are infringed and her health is endangered, is to give her nothing. The mere existence of the act, banning a potentially healthy alternative, chills doctors from performing a potentially necessary procedure, and thereby prevents women from seeking to guard their health. No woman presented with the decision between seeing her health suffer, and asking her doctor to break the law, would be comforted by her right to file a suit and wait a few days, weeks, or months for the matter to resolve. The alternative is meaningless, and the effect of the Court’s holding allowing these useless as-applied challenges is merely to pander to concerns for safety, without actually recognizing their importance or meeting them.

For a more recent case, look to the recent voter identification challenge, Crawford v. Marion County Election Board. [2] Indiana decided to require government-issued voter identification at polling places, a seemingly innocuous act, except when one realizes the societal consequences of the requirement. First, the widespread voter fraud the act purports to correct… doesn’t exist. Second, and more importantly, plaintiffs presented compelling evidence that the mere act of requiring voter identification would chill poorer citizens from going to the polls. Coupled with rampant Republican voter intimidation tactics, the act is an unmistakable attempt to suppress voter turnout.

In upholding the law, the Court gave short-shrift to these concerns, rejecting a facial challenge to the act while stating that a voter who is kept away from the polls by it is free to sue on as-applied grounds… when the harm actually occurs to her. Thanks, but… what’s the point? One voter may be able to sue in her own name, but by the time the suit is filed, presumably thousands of voters have already suffered the intangible, chilling effects of the law, and the election will already have taken place, with the taint on its legitimacy resulting from such tacit approval of voter intimidation.

So why allow these worthless as-applied challenges? I think the purpose is to give the impression that the Court cares about, and understands, the reasons for plaintiff’s objections, while allowing the Court to still not do a damn thing about it. Fantastic. That this is becoming a trend legitimately bothers me. [3]

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[1] See 127 S.Ct. 1610, 1639 (2007).

[2] See 55_ U.S. __ (2008).

[3] And look to FEC v. Wisconsin Right to Life (551 U.S. __ (2007)) for another great example of misuse of “as-applied” doctrine: there, Chief Justice Roberts invalidated an election law “as applied to” its principal purpose, but insisted that he hadn’t overturned the law.  I’m unconvinced, and most legal academics (who know better than me!) are too.