Abstract
The Supreme Court has long maligned facial, as opposed to as-applied, challenges to the constitutionality of statutes, warning that they are disfavored and difficult to win. But recently, in his separate opinion in Moody v. NetChoice, LLC, Justice Thomas has launched a stronger attack: facial challenges are improper exercises of the judicial power. Facial challenges, he asserted, require courts to go beyond the case or controversy before them, improperly distort standing doctrine, and thus violate Article III of the U.S. Constitution.
This Symposium Piece addresses Justice Thomas’s charge head on, arguing that facial challenges do not implicate the judicial power at all. Rather, only by granting remedies do courts exercise their power, and thus only by issuing relief that purports to extend beyond the parties to the case do courts unconstitutionally exercise that power. Accordingly, Justice Thomas’s concerns regarding facial challenges are actually downstream of a much bigger fight regarding the scope of relief available in federal court and the very nature of modern constitutional litigation. If the Court seeks to return the judicial power to traditional bounds, it ought to turn its focus to these remedies, rather than to facial challenges.
Recommended Citation
Natalie R. Schmidt,
Facial Challenges, Remedies, and the Judicial Power,
75
Cath. U. L. Rev.
150
(2025).
Available at:
https://scholarship.law.edu/lawreview/vol75/iss1/10
Included in
Constitutional Law Commons, Courts Commons, Jurisdiction Commons, Supreme Court of the United States Commons
