David L. Franklin (DePaul University - College of Law) has posted Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Court on SSRN. Here is the abstract:
This article explores how the Roberts Court has negotiated the choice between as-applied and facial review in its cases, and what those cases tell us about how the justices view the ongoing project of translating constitutional meaning into constitutional doctrine. Part I of the article describes the traditional model of judicial review, which strongly favors as-applied challenges over facial ones, and then canvasses several recent cases in which the Court has reaffirmed its adherence to that model. Part II discusses two categories of cases that have been described as exceptions to the traditional model--overbreadth cases and abortion rights cases--and discovers that the Court has not been especially receptive of late to facial challenges even in these areas. Part III identifies an intriguing phenomenon on the Roberts Court--what I call "facial adjudication in as-applied clothing"--and uses it as the key to discovering that facial review is not nearly as rare as the traditional model would have us believe. The article concludes by suggesting some reasons why this might be so, primarily an increased focus by some justices on substantive constitutional doctrines that necessitate an inquiry into legislative purpose.