Bashman, Redux

Hey P! I see that Howard has noticed our shout-outs to his growing importance to the appellate community. Hi Howard! I guess the plaintiffs didn't take my hint to email you. Now the 11th Circuit panel's clerks will have had the Alabama Solicitor General's last words in their e-ears as they sit down to write the opinions in the case. Foolish plaintiffs.

In other, non-law, news, I read this article about Palestinian celebrations of the third year anniversary of the "Second Intifada" and found it to be a depressing example of Reuters complete inability to tell a fair story in the middle east. Apparently, a Palestinian minister agrees.

Should Bashman Be Part of the Record

Plainsman notes that Bashman has become the one stop shop for every appellate judge and lawyer in the nation. The specific example of Bashman's emergent necessity is this post, in which Alabama S.G. Nate Forrester defends one of his staff against charges of incompetent advocacy in the Alabama sex toys case.

I agree with Plainsman. Howard is indispensible. Question, though: why is the Alabama S.G. wasting his time arguing the merits of an important appeal on a blog? Could it be that he thinks that the panel (and its law clerks) read Howard daily too, and wants to make sure that he get his voice heard? If so (and I think this is the likely explanation), does Howard owe the plaintiffs in the case a sur-reply? If I were the attorney for plaintiffs, I would shoot Howard an email post haste, which praised him, and then offered some more arguments on the merits. Prediction: in one year, writing an email to Howard Bashman, hoping for a positive mention in the blog, will become part of what it means to zealously represent a client in a high profile appellate case. Yikes.

A Good Apple

There is a wonderful article in this week's New Yorker about R. W. Apple, Jr., the NYT's famous reporter, and eater. Apple is the "quagmire guy"; he who Jack Shaferbelieves is a leading contrarian indicator. [That is, "Press Box" savages Apple for stating his "Q" heads summarizing the state of foreign policy as getting it precisely wrong, and marking the moment when things are about to get better]. The article and description of Apple, however, reminded me of my dear friend "Plainsman", now blogging on everything but law. Could it be that Plainsman is R.W. Apple? You'll never know.

Spleen Venting Time

Another thing. David Bernstein is really irritating me with his "The Horror" posts. First, he excerpted a small part of a story about Alabama's crumbling infrastructure to score a cheap point in defense of the state's retrograde undertaxation. But, the straw that broke the camel back was this idiotic post. Try to imagine yourself as a college freshman. The worst thing that could possibly happen in your life is to be woken up at 8:00 a.m. by a bunch of marchers outside your window screaming "The People, United, Will Never Be Divided". If you can't empathize with the horror of that moment, you are just old in your head.

A Virginia man was sentenced today to a 6.5 year term of imprisonment for selling fake bomb sniffing dogs to the government. Dog Trainer Russell Ebersole's argument at sentencing: "I believe in my dogs. They are heroes." AUSA's response: "[t]here is something sickeningly wrong with a man who steals from the Federal Emergency Management Agency at a time when it was stretched to the limit".

Well, yes. There is. But this low sentence, contrasted with mandatory minimum drug sentences, sort of makes me feel that there is something sickeningly wrong the system as as whole.

I can officially welcome my friend and former co-blogger to a blog of his own, the eponymous Plainsman. There, apparently, he is going to opine about only inconsequential things, so as to avoid potential conflicts with his new government job. P, are you sure the government agrees with you about Julia Child? You argue that "What struck me about the interview was that every critical judgment that the nonagenarian Child expressed was sound." But, according to our Great Leaders, all critical judgments are now likely to aid the terrorists. Might the terrorists have won if you convinced even one person that Contessa Ina Garten lacks "any charm"? Maybe the evil they have secretly despised Contessa Ina Garten for years!

Moving on.

I like P's blog, mostly because he has been able to do alone what we never managed to do together: make a functioning blog roll. How? He is a wicked smart guy. I may have to give up this blog just so I can start a new one that, well, works.

P is, unfortunately, not smart enough to avoid one of the most irritating heuristics of the last 4 years: the idea that there are "Red States" and "Blue States" and he lives in one of the former, and I the latter. I'm a little too tired right now to blog this out in the length it deserves, but suffice it to say, given an election where the Voters were divided equally, and states went one way or another on a few percentage point swings, it is a gross simplication to state that the middle of the country is homogenous in one way, and the coasts another. It tends to exagerate cultural divisions, make the national polity harder to govern, and encourage xenophobia. It is an observation borne out of television's need to concentrate relatively complex ideas into a simply graphic.

Of note today

I generally find Maureen Dowd to be a poof. A column earlier, however, was somewhat sharp on the superficial foolishness of the Administration's fly-paper theory of the Iraq conflict. Others are taking on the task of calling out the Administration with a bit more seriousness. I couldn't agree more. The idea that we are winning in Iraq because we have convinced a bunch of fanatics that it is the place to come to kill us is foolish on several levels. First, as many have noted, the supply of fanatics is renewable, while the supply of American blood and treasure is not. Second, this is precisely the argument that we made post-Tet in Vietnam. And once again, such arguments only work in "real" wars, not strategic or political wars, which is what Vietnam was, and Iraq has become.

No, I'm not dead

But I did have a "Job-ian" month. The Chaldeans delivered four witness preps, followed by a set of jury instructions, and I spent a non-trivial amount of time engaged in getting an article out the door. Most, but not all, of those tasks being accomplished, I'm ready to blog again.

While I was gone, it seems that Justice Moore embarassed his federalist fellow travellers by demonstrating why we really, really, need a Supremacy Clause; GWB tells us that, even given a $5.8 Trillion dollar expected deficit in a few years, and unending war and increasing threats of terrorist activity, he is undeterred. Beating GWB in 2004 is plainly insufficient; punitive damages (like, for example, requiring him to publically renounce Tom Delay) would seem to be necessary to remedy this kind of harm.

In that vein, I've actually donated a little money to Howard Dean. I'll tell you, I have mixed feelings about it. On the plus side, I like that he is not afraid of his own political shadow. On the minus side, it is easy to be unafraid when you have nothing to lose. On the second plus side, I enjoy that he isn't a tall man. On the second minus side, I believe that Dukakis was also short. On the third plus side, I think his e-campaign is well organized. On the third negative side, I am starting to get annoyed by the follow-up emails. Before I contribute more, I will wait to see if he changes his message in response to media pressure to become more electable. I really, really, liked this gambit. I also like that Dean, unlike Bush, is running a grassroots campaign of outrage, instead of a fatcat campaign of self-protection, and self-congratulation.

Whew. With P gone from this blog, I see I'll have to impose my own self-discipline so that I don't go off on political rants like this often.

I have been thinking about where to take this blog now. One of the features I'd like to do is an analysis of an interesting District Court case of the week - particularly a case that isn't in the media spotlight. I have sort of mixed feelings about this process, because I'm not convinced that it is a good thing to turn cases into entertainment fodder. But it is a relatively underserved niche.

I also think I'll spend a little more time than P and I did talking about scholarship. Like "Legal Theory Blog", without those monstrously heady posts where Solum is at first stumped by Professor Balkin's arguments, but then destroys him with a quip about Habermaas.

We'll see. For now, I've got to give those Jury Instructions another once over. Write more soon.

Also

PLAINSMAN: I'm going to buy another ish of Mother Jones off the newsstand before I take the plunge. I'm changing addresses in a few weeks anyway. I think I'll also take up The Atlantic at that time; it is excellent.

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Audibly Amused

PLAINSMAN: That Green Bag parody of Job is really funny. "While he was yet speaking, there came another, and said, The Chaldeans have delivered full ten thousand documents which we must redact, and only I am escaped alone to tell thee."

Good show.

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D:

I'll take another look at Mother Jones, on your say so. As I said, I had mixed reaction. On the one hand, my exposure to the magazine came in repeated visits to the the wonderful "Blue in Green" restaurant at N. 3rd and Market Streets in Philadelphia. [Note: Best. Pancakes. Ever.] But, although I am intrigued by your idea of "performative liberalism", it seems to me that its writers are too rarely exposed to the harsh, clarifying, light of political compromise.

But maybe it is worth another look. As for me, I'm terribly excided to start receiving my subscription to the Atlantic. I am also tempted to get myself a subscription to the Green Bag, even though I know that their bobble-head loss leader promotion has now expired. [Howard gets all the good stuff!] . Incidentally, I urge our law firm associate readers to compare this parody in the Green Bag with the original Book of Job. The idea that partners can do anything to their associates except for taking away vacation [at which point, associates will "curse thee to thy face"] just cracks me up.

One Thing About Pryor

PLAINSMAN: D. suggested below that a possible Democratic downside of filibustering Bill Pryor is that he'll just end up as a U.S. Senator from Alabama. Perhaps. But as I understand it, current Sen. Jeff Sessions is a solidly conservative Republican, and Sen. Richard Shelby is a fairly conservative Dem-gone-GOP, so there's a question of marginal loss/benefit.

Speaking of AG Pryor, I was curious to see whether he would be scheduled to speak at the 17th Annual Federalist Society Lawyers Convention on November 13-15, which I've begun to get letters about. Nope, he's not. Typically awesome lineup, however.

I plan to attend this year's Lawyers Convention (government rate!) if I can arrange the time off from work. It will be my first.

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I'm Going Into OT; and, Liberal Magazine Recommendations

PLAINSMAN: Jeez. I've run over my self-imposed deadline without addressing any of the topics I foreshadowed in my last post. This was unavoidable: I've been tying up loose ends here, signing a lease, and trying to get a law review article in shape for submission at the end of the month. Nevertheless, things shouldn't end on a whimper, so I'm going to defer my departure until Friday, August 8. By then I shall have my say on state court textualism, Grutter, and the magazine racks.

And speaking of magazines
Thank you to our readers who provided a lively set of left-leaning magazine recommendations.

Several people recommended The New Republic. It's a reasonable recommendation, but one I must decline. While there are any number of smart folks at TNR (Jeffrey Rosen, for example, is well worth reading), the anti-Christian animus displayed in TNR articles by Leon Wieseltier, Daniel Jonah Goldhagen, etc., tends to poison the mag for me.

Fewer people than I expected recommended The Nation. I used to subscribe to it in college, and have always liked Arthur Danto's art criticism. One reader pointed to Patricia Williams' column as a strength; I can't agree. I don't think she's a good writer, and in my experience she tends to assert striking positions rather than justify them. Still, The Nation is a possibility.

To my surprise nobody recommended The American Prospect. Granted, our sample size was hardly scientific. My general impression of TAP is that it is smart and earnest, tries to do some interesting things, but that its sensibility is compromised by a Beltway cocoon and a terminal Ivy League-itis (something I know tolerably well from first hand). It's sort of TNR shifted to the left.

You may recall that D. mentioned Mother Jones below, with the caveat that it was possibly too left wing for me. I took his lead and picked up a copy. To my curiosity and surprise, I liked it, and subsequent poking around the web site tended to confirm the impression, despite numerous obvious disagreements on political issues. Right now Mother Jones is leading the subscription stakes.

I think I know why: the hippie/green/labor influence on MJ suggests a grounding in lived experience, a personal warmth that the colder, more wonkish ideologies of TNR and TAP don't offer. I notice, for example, that there are lots of nicely produced ads in MJ for organic food co-ops, Burning Spear anthologies, and the like. While some might dismiss this in Cartmanesque fashion ("goddamn hippies!"), I find it comforting. The mag seems aware that aesthetics, folkways, agriculture, food and drink, the physical landscape around us, are part of our philosophical engagement with the world. Far from being marginal to a political magazine, these subjects implicate some of the same inward premises that help create our politics.

As I hope to discuss later, the same trait (in a very different context) attracts me to Chronicles, the principal paleoconservative magazine.[FN *] For all its eccentric and sometimes astringent stances, there is a personal quality, a groundedness in life in Chronicles -- what you might call a "performative conservatism", that is not found in, say, The American Enterprise or National Review. I liked what I saw of Mother Jones because it seemed to reflect a "performative liberalism."

More later. And by the way, though it comes much too late, my heartfelt congratulations to Feddie and his wife on their beautiful new daughter.

[FN *]: I haven't linked to Chronicles' web site because I find a lot of the content there harsh and unappealing. The magazine is much better. Perhaps it should be no surprise that paleos would be unable to put their best foot forward on a newfangled medium like the Internet. It makes for an interesting contrast with NR, whose website is snappy, state-of-the-art, and consistently readable, while the print mag, though solid enough, can get lugubrious. Also, the best stuff in the print NR is usually by NRO authors like Stanley Kurtz, Jay Nordlinger, John Derbyshire, etc. (I would have included Jonah Goldberg in that list, but let's be honest, his stuff has fallen way off since he got married. Domestic happiness: it'll get you every time. But I trust Feddie will brave it out unscathed.)

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No future for future market

Alas. I understand this was an opportunity for the Dems. to score points against the seemingly callous, hard-hearted, and political maladept administration. But, in my mind, DARPA's proposed future's market was a great idea, and one which we should not discard so likely.

Most of the opposition to the program arises from the "don't trade-off human life for money" moral heuristic. Cass Sunstein's protests notwithstanding, such moral heuristics make good sense when applied to, say, the judgments by jurors that a corporation's willingness to trade-off lives against safety ought to be punished. In that context, it is arguable that the jury's role is to distribute justice and positive social norms, not maximize economic efficiency. However, the ultimate aim of the proposed DARPA market would have been to maximize the amount of information we have about terrorists. This is a highly desirable goal, and we ought to carefully consider our moral heuristics, especially since we seem to be willing to relax all kinds of other prohibitions in the war against terror: (1) indefinitely imprison aliens and citizens who are working with the enemy; (2) assasinate enemy leaders, and accept mistaken attacks along the way; (3) torture (through, at the least, non-physical methods) enemy soldiers; and (4) holding hostage families of enemies. I don't know whether any of the above are moral choices, but they are more objectional, individually and in the aggregate, than allowing a few thousand people to bet against the house. People who bet on the terrorists will have their come-uppence sooner or later. Best yet, if truly catastrophic loss occurs, the debt will be uncollectable. Any objections should be practical ones. Tyler Cowen has an excellent post listing salient examples.

DARPA itself questioned whether it would be possible to use the market to stop terrorism. Their principal worry seems to be that it will be hard to design an efficient market that is explicitly subject to manipulation. That is, since the market knew that information gained would be used, wouldn't the smart bet be to short pro-terror bets as soon as they seemed mildly probable, on the theory that the government is watching? [And, since everyone knows that the smart long-bet is shorting terror, wouldn't decline in prices following a rise suggest that the market thinks that the government is acting, thus uncovering secret government projects].

There is an added risk to delegitimizing this program. Many legal scholars have advocated for increased use of cost-benefit like analysis by the government. If pseudo-CBA like the future's market are publically lashed, the CBA push will not go away, it will go underground. Where it will fester.

I take it back

Feddie should be blogging, in any role he wants: law clerk, citizen, lawyer, dad, or (we may hope) a replacement when soon-to-be Judge Pryor retires. I should have written him privately and given him the benefit of the doubt before slamming him in public.

Toads, Toadies, and "General" Pryor

I couldn't resist that title, even though I think I've exhausted the topic of the toad's status as a potential article of commerce. Instead, I'll invite a flame or two by discussing the partisan vote, yesterday, by the Senate Judiciary committee to recomend Bill Pryor to the Senate floor. Unless the democrats fillibuster, it looks like Pryor is headed to a seat on the bench. Where, I must say, he will do much less harm than in his current position. After all, in a little noted fact that should be seen as centrally important in this debate, he is getting nominated to the 11th Circuit. He is in the mainstream there. He is supported by both of his homestate senators. What's the big deal?

Professor Adler, no fool he, sees the real downside of a successful fillubuster: the dems might have elevated Pryor, like Sessions before him, to be a conservative hero, and given him a political boost in Alabama. Of course, Adler also says that Pryor is "a well-respected and well-liked state AG". It would probably have been prudent to qualify that Pryor is "well-respected" by people who agree with his substantive political positions, full-stop.

I have attempted, on this blog, to take the consistent position that the judicial nomination process is not a useful subject for posting. Basically, I see the nominating process as a larger version of the ultimatum game. The president cuts the pot. If he chooses a nominee who offers too little to the democrats, they reject the choice, disgusted at Bush's greedy attitude. Bush (and the republicans) take the attitude that such rejections are illegitimate because, in essence, he who can't cut shouldn't be choosy. I agree and I disagree. I think both players in the game are acting consistent with behavioral theory. To put it another way, everyone is doing what we would predict that they would. It follows, I think, that the overwhelming majority of those who criticize republican arrogance would vote democrat in the next election, and visa versa. Which means, at least to me, that most discussion on this topic is nothing other than saying, essentially, "hey, I'm going to vote for Kerry in a year and a half. But let me vent for a while now." Thus, when Feddie calls for war [scroll down to July 16] against the democratic party because of the way that they've obstructed the elevation of Pryor, we should not be terribly surprised.* I just don't find this discussion any more interesting than watching politicians make speeches to the empty Senate on C-Span.

But there are bigger issues to worry about that A.G. Pryor. For example, did the House of Represenatives really just pass a bill that would de-fund the judiciary if it tries to enforce the Alabama ten commandments decision? The press release says so. Such a bill seems plainly unconstitutional on its face on seperation of powers grounds. This is nothing like the jurisdiction stripping proposals which cause Fed Courts students such exam-grief. It is just the House, acting the fool, again. But on further consideration, I wonder who would have standing to challenge such a law. The plaintiffs in Glassroth? The Chief Justice (now *that* would be interesting)? Director Reyna?

P., comments?


*To be honest, that over the top post of Feddie's has really troubled me. I'm sorry to say that it led me to conclude that it really is not appropriate for law clerks to maintain blogs in which they discuss the judiciary.

A Troubled Toad

The site you reference describes the troubled arroyo toad as previously thought of merely as "nocturnal [and] nondescript". But more recent researchers have appreciatively noted the arroyo's "musical trill", "which it uses to find mates" [what else]. And, as you no doubt were unaware, the arroyo is one of the "few true toads". The others are obviously frogs with identity issues brought about by global warming.

Isn't it weird that local populations of such unique creatures are said to be outside of the ambit of federal commerce clause protections, while widely spread, more populace, commonplaces like the white tailed deer can be regulated to the ends of the earth?

1. On your first question, I would recommend Mother Jones, but I think it might be too far left for you. It is too far left for me, at any rate.

2. I will look forward to your post of state courts and textualism. I think I'll take our countdown to destiny as an opportunity to relax our rule about judicial nominations, with a bit of a discussion about the Pryor nomination and the next member of the nine.

3. If you have time, I'd like you to read this and tell me what you think about it, from your more religious perspective.

Some Coming Attractions

PLAINSMAN: I don't want to stir up any more trouble with the arroyo toads, which this site describes as "nocturnal, nondescript" creatures. Instead here is a preview of some posts I'd like to put up in the next nine days, as Sub Judice's countdown to destiny continues:

1. Observations about the national periodicals I subscribe to or purchase, which include (inter alia) First Things, Chronicles, National Review, The Atlantic, The New Criterion, and Food & Wine. I also want to solicit readers' suggestions as to which left-leaning weekly or monthly publication I should subscribe to. (I already buy Commonweal on occasion.)

2. A finished version of my long-incomplete post about state courts and textualism.

3. Thoughts on Grutter v. Bollinger.


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On politics and blogging

I recommend this quasi-eulogy about Blair on Slate. Kinsley misses, I think, the real reason why Blair is articulate and inspiring: part of his job is to convince his fellows extemporaneously during Prime Minster Question Time.

I haven't blogged for a while, mostly because there has been little I've been inspired to write about. Your Commerce Clause post, below, ties up some of the themes we raised earlier this year about facial challenges before and after the 1990s; but I found your discussion of toads to be less convincing, in part because I find it hard to imagine a world without the arroyo toad. P, are you suggesting that the poor Arroyo get off its butt, get on a plane, and start hawking its legs?

I still have not decided about the fate of this blog in your absence. Your excellent recent posts, however, remind me what I'll be missing. Howard too.

Remember the Appellate Name Game?

PLAINSMAN: Longtime readers (by Internet standards) will recall the tolerable fun we had a while back with "SELYA, BLACK, and COFFEY, Circuit Judges" (that one was Mr. Poon's); "BRIGHT, WINTER, and STARR, Circuit Judges"; and the like.

Today Howard notes that "SMITH, SMITH, and SMITH, Circuit Judges" is a theoretically possible panel. 3d, 5th, and 8th Circuits.

Insert Matrix joke here.

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Judge Dave and the Arroyo Toads

PLAINSMAN: Hello, all; I'm back from a short, enjoyable out-of-state excursion.

There's some Commerce Clause news today from the D.C. Circuit. In concise opinions, Judge David Sentelle and Judge John Roberts (welcome!) each dissented from the denial of rehearing en banc in Rancho Viejo v. Norton. (Link via Howard Bashman.)

The panel opinion in Rancho Viejo upheld, against a Commerce Clause challenge, a federal regulation that prohibited a developer from "taking" or otherwise messing with the arroyo toad, a non-migratory, purely local species that has no commercial value. (I suspect it is highly valued by arroyo toads, however.) Apparently the panel's theory was that the regulation was effectively a regulation of commercial development activity, not of the "taking" of toads, and that this ostensibly commercial activity had a substantial effect on interstate commerce, and was therefore regulable under Lopez. The panel's decision conformed to a 1997 circuit precedent (NAHB v. Babbitt) to the same effect.

Judge Sentelle's dissent from denial of en banc argued that the circuit's law is inconsistent with Lopez and Morrison. It can't be the case that a noncommercial activity is subject to federal regulation when performed by a commercial actor, while the very same activity is nonregulable if performed by a noncommercial actor.

This is, indeed, a crucial fork in the exegesis of the Commerce Clause. The same issue popped up in the important Supreme Court case of Solid Waste Agency v. U.S. Army Corps of Engineers (2001). There the majority construed an enviromental provision that authorized federal regulation of the "navigable waters of the United States" as not authorizing the regulation of purely intrastate ponds and puddles frequented by migratory birds. Thus the victory went to a municipal corporation which sought to construct a disposal site on a federal "migratory bird" site.

This statutory interpretation was partly motivated by constitutional concerns: the Court thought it seriously questionable that the Commerce Clause would permit such regulation. The four dissenters, however, argued in part that the regulation was really a regulation of the disposal site's activity. As such, it regulated a commercial activity, which was subject to "aggregation" under Morrison, and was therefore OK under the Commerce Clause. This is very much like the D.C. Circuit's argument in NAHB and now Rancho Viejo, at least as Sentelle tells it. The Supreme Court's implicit rejection of this view in (I'll just say it one more time) Solid Waste Agency suggests that the D.C. Circuit's decisions in NAHB and Rancho Viejo may have rested on a false premise.

Judge Roberts took basically the same view in his dissent. But he added an interesting legal argument: that Lopez and Morrison must be read as having squarely rejected the panel's notion that the constitutionality of federal regulation may turn on whether a commercial or noncommercial actor performs an activity. This is so, Judge Roberts argues, because Lopez and Morrison were successful "facial" Commerce Clause challenges. Under current constitutional doctrine, he contends, a facial challenge can succeed only if the challenged law is invalid in all its possible applications (citing United States v. Salerno (1987)). But if the panel's emphasis on the commercial/noncommercial identity of the actor were actually relevant, then Lopez and Morrison would not have come out the way they did. Some applications of the challenged statutes in each case would have been constitutional (e.g., bringing a gun to school to further one's drug dealing business; or beating up women to further an extortion ring), so, under Salerno, the constitutional challenges would have failed.

This is quite thoughtful. I think it suggests what a boon it will prove to have Judge Roberts sitting on the nation's second-highest court. But in truth, Judge Roberts's argument is hard to assess, because we have no idea what the current law of facial challenges is. It's a mess. The constitutional law academy is rife right now with scholars trying to bring some sort of order to the proceedings. Salerno did indeed seem to announce a binding rule, but that rule has since been honored in the breach as much as in the observance. It's kind of like the Lemon Establishment Clause test: Salerno gets cited when the Court wants the facial challenge to fail; it goes uncited when the facial challenge wins.

In particular, the Supreme Court's abortion cases have notoriously undermined the Salerno rule, invalidating on their face statutes that were obviously constitutional in some of their applications. Stenberg v. Carhart (2000) is a recent example. And the Court's recent Commerce Clause cases are just plain opaque in this respect. The Court hasn't figured out how to think about enumerated-powers challenges in the traditional facial/as applied terms, so it doesn't. Instead it talks about the legislative "presumption of constitutionality," and encourages Congress to include jurisdictional hooks in federal statutes, which tend to convert as-applied constitutional challenges into less dramatic questions of statutory interpretation, if you get what I mean.

The lower courts are equally ill at ease. Readers will recall that one of the points of contention between Judge Reinhardt and Judge Trott in U.S. v. McCoy (9th Cir. 2003), was whether it was appropriate to uphold McCoy's challenge to the federal child-pornography possession laws as an "as applied" challenge.

I do not have an answer to this muddle yet. If forced to guess, I suspect that we are moving toward a new doctrine of facial challenges in which it is sufficient, at least in some areas of constitutional law, for the challenger to show that a "substantial majority" of the statute's applications are unconstitutional. I just made that standard up off the top of my head.

Nevertheless, Judge Roberts' legal argument from Salerno is reasonable. It's up to the Supreme Court to overrule or limit its own cases.

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