Justice Thomas Expresses Doubts About the Overbreadth Doctrine

I anticipated this change, which is consistent with Thomas's Murphy v. NCAA concurrence

In Murphy v. NCAA, Justice Thomas re-oriented severability doctrine around Article III standing. He identified a fundamental, jurisdictional problem with modern severability doctrine: it "often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions."

This opinion has shifted how I view severability doctrine. Indeed, it has shaded my view of the Obamacare litigation. Last year, I explained that this position would also affect First Amendment law:

But if Justice Thomas is correct that the standing inquiry is jurisdictional–that is, the courts are constrained by Article III–then the entire basis for modern severability doctrine is wrong. All of it. For example, in the First Amendment context, the Court's approach to overbreadth has to be wrong. How can the Court enjoin the entirety of a statute, if only part of that law restricts the Plaintiff's speech? As with many proposals that emanate from Justice Thomas's chambers, this change to severability doctrine would be radical.

Today, Justice Thomas articulated that view. He wrote a concurrence in United States v. Sineneng-Smith. 

The merits of that decision also highlight the troubling nature of this Court's overbreadth doctrine. That doctrine provides that "a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" United States v. Stevens, 559 U. S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6 (2008)). Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application. It appears that the overbreadth doctrine lacks any basis in the Constitution's text, violates the usual standard for facial challenges, and contravenes traditional standing principles. I would therefore consider revisiting this doctrine in an appropriate case.

Here, Thomas's injury-based analysis is parallel to Murphy:

And all these laws were considered unconstitutional not because they necessarily violated an individual's First Amendment rights but "because of a judicial prediction or assumption that the statute's very existence maycause [some citizens] to refrain from constitutionally protected [activity]."

He explains:

Finally, by allowing individuals to challenge a statute based on a third party's constitutional rights, the over breadth doctrine is at odds with traditional standing principles. This Court has long adhered to the rule that "a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties." … Litigants raising overbreadth challenges rarely satisfy either requirement, but the Court nevertheless allows third-party standing to "avoi[d] making vindication of freedom of expression await the outcome of protracted litigation."

Thomas casts doubt on long-standing precedent, including Craig v. Boren. (I'm sure RBG was thrilled):

The overbreadth doctrine's disregard for the general ruleagainst third-party standing is especially problematic inlight of the rule's apparent roots in Article III's case-or-controversy requirement. Although the modern Court has characterized the rule as a prudential rather than jurisdictional matter, see Craig v. Boren, 429 U. S. 190, 193 (1976), it has never provided a substantive justification for that assertion.

Thomas contends that First Amendment rights are "private" rights (with a cite to Andy Hessick):

Personal constitutional rights, such as those protected under the First Amendment, are "private rights" in that they"'belon[g] to individuals, considered as individuals.'" Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 287 (2008) (listing "First Amendment rights" as examples of private rights provided by the Constitution). Thus, when a litigant challenges a statute on the grounds that it has violated his First Amendment rights, he has alleged an injury sufficient to establish standing for his claim, regardless of the attendant damages or other real-world harms he mayor may not have suffered.

The rest of the opinion makes several other important points.

Thomas favorably cites Jud Campbell's important article on free speech:

In other words, the doctrine is driven by a judicial determination of what serves the public good. But there is "no evidence [from the founding] indicat[ing] that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare." Campbell, Natural Rights and the First Amendment, 127 Yale L. J. 246, 259 (2017). This makes sense given that the Founders viewed value judgments and policy considerations to be the work of legislatures, not unelected judges. See Obergefell v. Hodges, 576 U. S. 644, 709 (2015) (ROBERTS, C. J., dissenting). Nevertheless, such judgments appear to be the very foundation upon which this Court's modern overbreadth doctrine was built.

Thomas explains how overbreadth doctrine is inconsistent with precedent:

In addition to its questionable origins, the overbreadth doctrine violates the usual standard for facial challenges. Typically, this Court will deem a statute unconstitutional on its face only if "no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987). But the overbreadth doctrine empowers courts to hold statutes facially unconstitutional even when they can be validly applied in numerous circumstances, including the very case before the court.

But when a court entertains—or in this case, seeks out—an overbreadth challenge, it casts aside the "judicial restraint" necessary to avoid "'premature'" and "'unnecessary pronouncement[s] on constitutional issues.'" . . .

"[T]here is good evidence that courts [in the early Republic] understood judicial review to consist [simply] 'of a refusal to give a statute effect as operative law in resolving a case'" once that statute was determined to be unconstitutional. Johnson, supra, at 615 (opinion of THOMAS, J.) (quoting Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010)). Thus, our "modern practice of strik[ing] down" legislation as facially unconstitutional bears little resemblance to the practices of 18th and 19th century courts. Johnson, supra, at 615 (opinion of THOMAS, J.) (internal quotation marks omitted); see also Mitchell,The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018) ("[F]ederal courts have no authority to erase a duly enacted law from the statute books").

Also check out Kevin Walsh's article on severability and Jon Mitchell's classic, The Writ-of-Erasure Fallacy.

Thomas also points out that the overbreadth doctrine has only been used in the Free Speech context, but ever in the Free Exercise context:

The Court often discusses the doctrine as applying in the context of "First Amendment rights" more generally. Such arguments are typically raised in free speech cases, but the Court has occasionally entertained overbreadth challenges invoking the freedom of the press, and the freedom of association. Curiously, however, the Court has never applied this doctrine in the context of the First Amendment's Religion Clauses. In fact, the Court currently applies a far less protective standard to free exercise claims, upholding laws that substantially burden religious exercise so long as they are neutral and generally applicable. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). The Court has never acknowledged, much less explained, this discrepancy.

Someone is ready to overrule Smith.

On a related note, Thomas repeats his claim that some rights are disfavored:

Collaterally, this Court has a tendency to lower the bar for facial challenges when preferred rights are at stake. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). This ad hoc approach to constitutional adjudication impermissibly expands the judicial power and "reduc[es] constitutional law to policy-driven value judgments." Whole Woman's Health v. Hellerstedt, 579 U. S. ___, ___ (2016) (THOMAS, J., dissenting) (slip op., at 16). We ought to "abid[e] by one set of rules to adjudicate constitutional rights," ibid., particularly when it comes to the disfavored practice of facial challenges.

I have a theory. The Justices could not coalesce around a severability case that may impact the ACA litigation. So they instead decided to beat up on Judge Reinhardt.