Cite as: 603 U. S. ____ (2024)
17
THOMAS, J., concurring in judgment
text or history of the First Amendment.” Sineneng-Smith,
590 U. S., at 384 (opinion of THOMAS, J.). Instead, the
Court has supplied only “policy considerations and value
judgments.” Ibid.
The overbreadth and vagueness doctrines’ method of facial invalidation eventually spread to other areas of law,
setting in motion our modern facial challenge doctrine. For
several decades after Thornhill, the Court continued to resist the broad use of facial challenges. For example, in
Broadrick v. Oklahoma, 413 U. S. 601 (1973), the Court emphasized that “[c]onstitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the
litigants brought before the Court.” Id., at 611. In that
vein, the Court characterized “facial overbreadth adjudication [as] an exception to our traditional rules of practice.”
Id., at 615. But, the Court eventually entertained facial
challenges more broadly where a plaintiff established that
“no set of circumstances exists under which the Act would
be valid.” 6 Salerno, 481 U. S., at 745. Just as with the overbreadth doctrine, the Court has yet to explain how facial
challenges are consistent with the Constitution’s text or
history.
Given how our facial challenge doctrine seems to have developed—with one doctrinal mistake leading to another—it
is no wonder that facial challenges create a host of constitutional and practical issues. See supra, at 6–13. Rather
than perpetuate our mistakes, the Court should end them.
“No principle is more fundamental to the judiciary’s proper
role in our system of government than the constitutional
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6 Some Members of the Court subsequently sought to apply a more lenient standard to all facial challenges. See Washington State Grange v.
Washington State Republican Party, 552 U. S. 442, 449 (2008) (noting
that “some Members of the Court have criticized the Salerno formulation”); United States v. Stevens, 559 U. S. 460, 472 (2010) (reserving the
question of which standard applies to “a typical facial attack”).