In two major decisions this term, the U.S. Supreme Court rejected broad-brush, facial attacks on statutes and held open the possibility of successful, more narrowly based, “as applied” challenges. But that possibility is largely an illusion, say some court scholars and litigators.
The practical effect of the Roberts Court’s recent disdain for facial challenges — and its preference for “as applied” ones — will be to end litigation in those areas, they predict.
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