Modest Hope for a Modest Roberts Court: Deference, Facial Challenges, and the Comparative Competence of Courts

Abstract

While some seem to believe that ever since Marbury, constitutional interpretation has been solely the prerogative of the judiciary, that notion is wholly untenable. Scholars from across the political spectrum have brought renewed attention to non-judicial constitutional interpretation and criticized the Supreme Court for failing to pay sufficient respect to those interpretations.

Meanwhile, the Supreme Court has found itself in an ever-expanding morass, trying to sort out the appropriateness of facial, as opposed to as-applied, constitutional challenges. What at one time seemed to be a clear general rule, with a narrow First Amendment exception, has devolved into confusion bordering on incoherence across a wide range of constitutional provisions.

This essay considers these two developments together. It argues that an exploration of the comparative competence of courts regarding constitutional interpretation should inform the judiciary's approach to facial, as opposed to as-applied, constitutional challenges. That exploration suggests a modest role for the judiciary and a strong preference for as-applied rather than facial approaches to constitutional adjudication.

Moreover, building on the observation of other scholars that substantive constitutional doctrine affects the availability of facial challenges, this essay also argues that constitutional doctrine should itself be shaped with an awareness of this effect and that courts should be reluctant to embrace substantive doctrine that undermines their own comparative competence.

Finally, several early decisions from the Roberts Court suggest that the Court may be moving toward the more modest role articulated by Chief Justice John Roberts and associated with as-applied challenges, while the addition of Justice Samuel Alito to the Court may contribute to this movement.

Keywords: facial challenges, as-applied challenges, comparative competence, judicial supremacy, judicial modesty, Chief Justice Roberts, Justice Alito, severability