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Friday, July 11, 2008

Facial Challenges Are Out: auf Wiedersehen!

In an article published in the July 2008 issue of the ABA Journal, LA Times Supreme Court Reporter David G. Savage argues that the Roberts Court is sending a message: “Facial Challenges are out. As-applied challenges are in.”

In other words, if a state passes a generally applicable law (like a voter-id law) that seems likely to harm a lot of people, the High Court won’t help you until the harm has come to pass. Unless you can demostrate that actual voters have already been disenfranchised, Chief Justice Roberts has no time for your "hypothetical" complaints--which means that you can't vindicate your fundamental right to vote until after you've missed the election. Even then, the court will only avenge the rights of those particular victims who challenge the law, leaving the offending law in place to harm more people in the future. Perhaps this is what Justice Roberts means when he claims he takes a minimalist approach to the law.

This approach creates the false impression that it is somehow wrong for judges to make logical assumptions about reality, but as Justice Felix Frankfurter observed, the Supreme Court “should not be ignorant as judges of what we know as men.” Dismissing facial challenges allows preventable harms to occur, limits possible remedies, and closes the courthouse door to entire classes of people.

It begs the question--if fundamental rights are at risk--why wait?

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