At times, the Supreme Court goes through jurisprudential fads. I am not referring to any particular substantive doctrine. Rather, some idea gets in the ether, and the Justices try to apply it in different contexts.
In recent terms, the Justices seem to be going through a fad based on as-applied and facial challenges.
United States v. Hansen (2003) cast some doubt on the ability of plaintiffs to bring facial overbreadth challenges under the First Amendment. In Rahimi (2024), the Court treated the motion to dismiss as a facial challenge, rather than an as-applied challenge, and upheld 922(g)(8) under the Salerno test. Justice Gorsuch's concurrence seemed to agree with this framing. In NetChoice (2024), all nine members of the Court agreed that both the Fifth and Eleventh Circuits failed to apply the proper standard for a facial challenge. Rahimi and NetChoice were decided back-to-back, and it was not clear to me why the facial challenge bar was lower for the First Amendment than for the Second Amendment. And in Trump v. United States (2024), Justice Barrett conceived of the immunity doctrine in terms of as-applied challenges. On July 2, I wrote "The other story of this term is that the Justices have absolutely no idea what to do with facial challenges--see Rahimi, Trump, and NetChoice."
