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Facial Challenges

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The Supreme Court issued one opinion today in the political case of Washington State Grange v. Washington State Republican Party, No. 06-713. For criminal law practitioners, the case is primarily of interest for the Court's continuing hostility to "facial" challenges to statutes. In United States v. Salerno, 481 U.S. 739, 745 (1987), the Court set the hurdle for such a challenge almost impossibly high: "that no set of circumstances exists under which the Act would be valid.” The Court has waffled since, but facial challenges remain much more difficult than they were in earlier times, and today the Court rejected a facial challenge to Washington's "blanket" primary, telling the plaintiffs to wait until the law is actually applied and then challenge it as applied.

For Court-watchers, the lineup is interesting. Justice Scalia, the author of Salerno, dissents, claiming that the case meets that standard. Justice Thomas wrote the opinion from which Justice Scalia dissents, further refuting the nonsense that he just follows Scalia. Justice Kennedy, the "swing vote" who was always in the majority last term, is in the dissent again.

Still waiting on Medellin and Boumediene. Maybe tomorrow.

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Scalia certainly had the better of the argument, IMHO. Basically, the law allows a state to hijack the party name for the benefit of some political candidate.

You really have to feel for the families of the victims in the Medellin case. They have waited long enough for some justice in this case.

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