« Ind. Courts - More on: Jeffersonville's ban on sex offender in park to be tested again | Main | Ind. Courts - Update on: Plea deal pulled in attorney sex-attack case »

Saturday, August 09, 2008

Courts - "Are Facial Challenges Going the Way of the Dodo?" Indiana voter ID ruling cited

So asked Ashby Jones in the WSJ Law Blog yesterday. The entry quotes from Marcia Coyle's August 8th review of the court term in the National Law Journal. Among the "trends" Coyle points out to track:

The broadest of constitutional attacks, the so-called facial challenge, which aims to strike down an entire law on its face, is now clearly disfavored by the Court. Across the areas of abortion, campaign finance, elections and the death penalty, the Roberts Court has rejected facial challenges in favor of as-applied challenges in which the justices examine the application of a particular law to actual facts, case-by-case. "I think this is John Roberts' chief legacy so far," said Alan Morrison, special counsel to Fair Elections Legal Network. "The Court is saying, 'We are going to be very skeptical of facial challenges and demand a high level of evidence. Without knowing who is disadvantaged, how many are disadvantaged and the level of disadvantage, we are not going to overturn the statute.' " * * *

The facial versus as-applied constitutional challenge played out in two key cases this term -- the challenge to Kentucky's lethal-injection protocol in Baze v. Rees, 128 S. Ct. 1520 (2008), and the challenge to Indiana's voter ID law in Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008).

"I think this emerging trend in the difference between facial and as-applied challenges is crucial," said Kilpatrick Stockton's Levy. "The difference is who can sue, when they can sue and what kind of relief they can get. It partially closes the courthouse door, limits judicial remedies, and reduces the judicial role."

For the Roberts Court, the trend has its roots in Roberts' first term and the decision in Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), a facial challenge to New Hampshire's law requiring parental notice before a minor can obtain an abortion. The Court, led by O'Connor in a rare unanimous abortion decision, declined to strike down the entire statute based on its unconstitutional application to a small percentage of cases.

In Baze, a plurality, led by Roberts, upheld the Kentucky protocol and articulated a standard for determining whether a lethal-injection protocol violates the Eighth Amendment bar on cruel and unusual punishment. The Court held that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. Stevens, in a concurrence, joined in the judgment but announced he no longer supported the death penalty. With concurrences, the vote was 7-2.

The Court left open the door to future litigation that might show that another state's protocol violated the Eighth Amendment, but there was insufficient proof of such a violation in the record of the Kentucky case.

In Crawford, another plurality, led by Stevens, rejected a facial attack on the Indiana statute after concluding that there was insufficient evidence that the law burdened the right to vote and that the state's interest in preventing voter fraud was legitimate. The Court again left open the door to future challenges by potential voters actually impeded in their effort to case a vote. With concurrences, the vote was 6-3.

Crawford can be explained by the principle of "the dog who didn't bark," said Morgan Lewis' Cruz. "The Court found both sides failed to introduce very much evidence, but the burden was on the plaintiffs," he said.

Neither case was viewed by experts as the strongest possible challenge to the laws at issue. Cases with better records, particularly in the lethal-injection context, were passed over by the Court.

"I do think the as-applied approach is important and a major device the chief has hit upon to continue to get narrow rulings and rulings with vote margins wider than 5-4," said Pepperdine's Kmiec. But he questioned what is achieved by the rulings in the end. "You get a general discussion of the meaning of the statute, which can be helpful, but you also get a remand to the lower court," he said. "The proof will be in pudding as to how the lower courts react. Do they take the hint from the consensus opinion or continue to go their own way? We don't have a representative sample on that yet."

But "the handwriting is on the wall," said high court litigator Thomas Goldstein, co-chairman of the Supreme Court practice at Akin Gump Strauss Hauer & Feld. As-applied challenges may be brought in both areas of the law, but they are unlikely to succeed, he predicted.

Posted by Marcia Oddi on August 9, 2008 08:13 AM
Posted to Courts in general