The national legal director of the American Civil Liberties Union says the opinions signal a basic shift in litigating constitutional claims. “It’s important to understand this is a fundamental departure from what the court has done over the past four decades to protect civil and constitutional rights,” says Steven R. Shapiro of New York City.I am not sure that is necessarily the case that facial challenges are unfavored.
As a point of comparison, he cites Harper v. Virginia Board of Elections, the 1966 decision that struck down the poll tax.
“The court in Harper didn’t say, ‘Bring us someone who cannot afford $1.50 and we will strike down the law as applied to those persons.’ They struck down the law on its face because it was about suppressing votes, not about protecting the integrity of the elections,” Shapiro says.
I think that cases will turn on the facts of the case and the nature of the right being asserted. The more fundamental a right, the more likely a facial challenge will be heard. But that still doesn't obviate the need to find a real plaintiff and that, I think, is where some of these "facial" challenges fail. I think some of the recent "facial" challenges of late failed on the notion of real injury of a real plaintiff, not a formulated or contrived plaintiff. In Harper, for example, on the face of the statute, it would appear that the poll tax was intended to help pay the costs of an election. But the law itself was not uniformly applied and was disproprotionately imposed on minorities, i.e. poor whites were often exempted from the law. It was the unequal application of the law that led most directly to its downfall.
I also think that the ACLU and other "rights" organizations are hitting a limit as to what the courts will find acceptable fodder for litigation. There are real injuries out there, but sometimes, the ACLU and others take matters a little too far in asserting "rights" that etiher, a) don't exist or b) are reasonably limited by statute. There is also a limit to the Constitutional rights that can be enforced through these kinds of facial challenges to state laws.