Legal Commentary

Now available on SSRN and, I'm told, due to appear any day in print is a short essay by me entitled A Radically Immodest Judicial Modesty: The End of Facial Challenges to Abortion Regulations and the Future of the Health Exception in the Roberts Era. Short essay, long title. Here's the abstract:

If there is anything as strongly associated in the public mind with Chief Justice John Roberts as his black robe and judicial temperament, it is surely his claim to judicial modesty. And indeed, some commentators have suggested that there are signs of newfound judicial restraint in the Roberts Court. One example of this purported restraint is the Roberts Court?s expressed preference for narrower, as-applied decisionmaking in constitutional cases, as opposed to striking down statutes on their face. The Roberts Court has turned away facial challenges or otherwise expressed a preference for making decisions on an as-applied basis in a number of cases. Examples range across a wide spectrum of subject matter, including voting rights cases, an Americans with Disabilities Act case, First Amendment cases, and abortion cases.



In this contribution to a symposium on ?Access to Courts in the Roberts Era,? I focus specifically on the Roberts Court?s decisions in Gonzales v. Carhart and its predecessor Ayotte v. Planned Parenthood of Northern New England in order to consider the meaning and impact of the Roberts Court?s preference for as-applied adjudication in one specific area - abortion jurisprudence. Moreover, I evaluate the likely impact of these rulings in light of Chief Justice Roberts?s expressed preference for judicially modest rulings.



I argue that Ayotte and Gonzales, which on their surface appear to indicate a preference for modest, narrow rulings, are anything but modest in their implications. These decisions call for federal judges to re-write legislation and to make judgments in areas in which they have little expertise. They thus assure continuing federal court involvement in micro-legislating the scope of abortion rights. In addition, the holdings in Gonzales and Ayotte, which ostensibly turn on the appropriateness of facial challenges, are really about re-shaping the underlying substantive constitutional law pertaining to abortion rights. As such, they represent an instance of the remedial tail wagging the substantive dog - a case of the proper remedy, as determined by the Supreme Court, shaping the underlying right. In this sense, these cases form a stark contrast with prior judicial practice, in which the availability of facial invalidation depended at least in part on the nature of the underlying substantive constitutional doctrine, rather than vice versa. I thus explain why the Roberts Court?s stated preference for as-applied challenges, at least as it has been presented in the abortion cases, does not serve the end of judicial modesty.

It feels a little odd to be plugging this article now, as it was written for a symposium that was held at Case Western back in January of 2008 on "Access to Courts in the Roberts Era." But, as a wise person recently said to me, a symposium publication can only move as quickly as its slowest contributor (and, to be fair, I was undoubtedly *not* one of the faster contributors).  Still, I am wondering whether others have had experiences with publications appearing after they are already a bit stale, or at least, far less fresh than were when they were written. Perhaps timeliness is overrated? On the one hand, SSRN allows us to make our scholarship available immediately, whether or not it has been published; at the same time, scholarship should presumably have some sort of staying power, since it remains both accessible and accessed long after the day it was published. Thoughts?