(OK, lightning round con-law review: "Facial challenges" claim that a law is unconstitutional under every set of facts. They have traditionally been a useful mechanism for knocking down patently unconstitutional laws—one that allows lawyers to get cracking before a lot of people get thrown off the voting rolls, say, or can't get an abortion because of a hugely burdensome regulation. The tougher alternative is to require a real harmed plaintiff to bring an "as-applied" challenge, based on the premise that the law in question may be constitutional in general but not when applied to her. More from Mike Dorf here.)
With increasing frequency, the court's conservative wing has been chipping away at facial challenges (the better to bar litigation), and today Scalia takes out a sledgehammer: "I mean, every facial challenge is an immense dictum on the part of this court, isn't it?" He goes on to characterize all facial challenges as the court "sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases …"
Ginsburg tries to establish that the reason for allowing facial challenges is that when a law burdens the right to vote, "[T]he horse will be out of the barn." While waiting to suffer real injury, plaintiffs get to kick back and watch "election results skewed for the other party, while they were unable to vote." In the case of Indiana's indigent voters in particular "that's not hypothetical, that's real."
Then Kennedy enters stage right, struggling to make the Indiana law at least slightly less burdensome, while preserving "the central purpose of the statute." And the brilliant Solicitor General Paul Clement, defending the law on behalf of the Bush administration, drives the last stake through the heart of facial challenges, by making it sound ever so reasonable for the court to wait around for some real voters to be truly disenfranchised, and only then tweaking the statute some to help them out. Kennedy looks hugely relieved; Roberts practically burps him. But Stevens asks whether it's not slightly "unrealistic to assume" that indigent voters without cars might find it, er, "[E]asier to file a lawsuit and bear the burden of litigation rather than go back to get the second affidavit" needed to get their ID cards? If you're too poor or marginalized to track down your birth certificate, is filing a federal class-action suit really the faster, cheaper alternative?
In his rebuttal, Paul Smith is dramatic, warning that if the court were to scrap facial challenges in this context, election law would become a "morass" and "that way lies madness." He reminds the court that "nobody challenged the poll tax as applied." But Kennedy isn't going for it: "You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters?"
"Only if that law serves no purpose," replies Smith.
"What if we determine that it does serve a purpose in preventing fraud?" asks Roberts. (Which can totally be done if you count hypothetical future acts of invisible fraud as vote fraud.) Well, then it might look totally reasonable to uphold the Indiana law.
To recap: I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote. Happy byproduct? Doing away with those pesky facial challenges that liberals like to use to address massive injustices. So in the guise of doing away with hypothetical future challenges to a law, the court is poised to uphold a law that solves hypothetical future problems in voting. And for those of you wondering why the court didn't see fit to release audio for today's monumentally important argument, the answer remains, who knows? But here's one guess: The justices didn't want to be caught on tape sounding like the same 5-4 court that decided Bush v. Gore, even if nothing has changed.