80
Scalia, J., dissenting
500 U. S. 173, 183 (1991); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (opinion of Kennedy, J.); Webster v. Reproductive Health Servs., 492 U. S. 490, 523-524 (1989) (O'Connor, J., concurring in part and concurring in judgment); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11-12 (1988).3 Unsurprisingly, given the clarity of our general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial challenges.4
3 The plurality asserts that the Salerno standard for facial challenge "has never been the decisive factor in any decision of this Court." Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application—and hard to resist mentioning more than one.
The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court's opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the "standing" question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says "all" (in addition to his own rights), the plurality says "many." That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable.
4 See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth of Mass., 84 F. 3d 18, 20 (CA1 1996); Deshawn E. v. Safir, 156 F. 3d 340, 347 (CA2 1998); Artway v. Attorney Gen. of State of N. J., 81 F. 3d 1235, 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F. 3d 254, 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F. 3d 1096, 1104 (CA5), cert. de-
Page: Index Previous 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 NextLast modified: October 4, 2007