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.”
In TikTok v. Garland (2025), the Court ruled that the prohibition was “facially content neutral,” but would not consider an exclusion in the statute which was “not within the scope of petitioners’ as-applied challenge.” In Williams v. Reed (2025), Justice Thomas in dissent faulted the majority for ruling on an as-applied challenge, when the petition raised only a facial challenge. In Bondi v. VanDerStock (2025), the Court recharacterized the plaintiffs’ as-applied challenge into a facial challenge under the Salerno test. (I was counsel in this case, and can attest how the Court botched the record.) At the time, I speculated whether Salerno would replace Chevron, as another doctrine to make it harder to challenge federal regulations. Treating a case as a facial challenge is just another way of making sure the plaintiff loses. And indeed, a recent JREG post suggests that DOJ is attempting to use Salerno with VanDerStock as a new deference doctrine.
Maybe all of these cases were a coincidence. But I think it is a fad. Somehow, this issue has gotten into the minds of the Justices, and they keep bringing it up in different cases, even where it is not needed to decide the case.
The oral arguments in Hecox and B.P.J. suggest that the Court is still focusing on the line between facial and as-applied challenges.
Equal protection claims are brought facially. I never even considered the alternative. For example, consider an affirmative action case like Students for Fair Admission. The group argued that Harvard and UNC used unconstitutional racial classifications against all applicants. To be sure, the plaintiffs showed they were injured to establish standing. But the volumes of data submitted in this case turned on the admission policies more generally, and not the particulars of the plaintiffs.
The same approach applied to Fisher v. University of Texas, Austin. Abigail Fisher had to show she was injured to establish standing: she applied to UT, paid an application fee, and was rejected. But the case did not turn on how Fisher’s individual file was reviewed. Rather, it considered UT’s policy more generally. Again, she brought a facial challenge. And the requested remedies in the affirmative action cases were the wholesale invalidation of the policy, not an order that Fisher or members of SFFA had to be admitted. Indeed, by the time Fisher II was decided, the plaintiff had already graduated from LSU, and was no longer seeking admission to UT.
Is it possible to have an as-applied challenge based on the Equal Protection Clause? I’ll admit, before Tuesday, I had never considered the issue. (I have not followed the Fourth Circuit litigation closely.) The closest I could think of was Village of Willowbrook v. Olech (2000). This largely-overlooked per curiam opinion held that a plaintiff could establish a class of one under the Equal Protection Clause even “where the plaintiff did not allege membership in a class or group.” The Court noted that a class of one equal protection claim is made “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Of course, it is very difficult to prevail under a rational basis test, but in egregious cases such as Olech it is possible. One of my first articles posited that individual homeowners could bring Olech equal protection claims to block eminent domain seizures. Creative, perhaps, but the idea did not catch on. Indeed, the Court has only cited Olech a few times over the past quarter-century.
In Hecox and B.P.J., Justice Kagan spent some time asking if it was even possible to bring an as-applied equal protection claim.
Consider this colloquy between Justice Kagan and Idaho Solicitor General Alan Hurst.
JUSTICE KAGAN: Are you then saying, Mr. Hurst, that there really is no such thing as an as-applied equal protection challenge?
MR. HURST: No, Your Honor. But what I’m saying is that equal protection, the question is whether the classification is valid and not whether it makes sense in individual situations.
JUSTICE KAGAN: But that sounds to me as though –and, you know, I think our –our precedent is –is actually very sparse in this area, sort of surprisingly sparse. But it sounds to me as what you’re saying is, as long as the –the classification is facially valid, a person does not get to come in and say that with respect to some subclass, a small subclass in this case, a person doesn’t get to say, with respect to some subclass, there’s a mismatch, that the justification has run out, that the justification doesn’t apply. You’re saying that that really is just not an available argument.
MR. HURST: I –I agree that is not an available argument.
Kagan returned to the theme and said that the Court has not answered this question:
JUSTICE KAGAN: Another thing that this litigation could be about is this deeper and, as I say, surprisingly unanswered in my mind equal protection question about what –what –what an as-applied equal protection challenge is and whether they exist. And I –I guess, you know, you’re suggesting that we should –well, I don’t really know what you’re suggesting because, here, you’re saying, look, just do it that way. They could be right on the science and we would still win. A lot of your briefing really contests their view of the science. So which way should we think about this case?
Kagan inquired further why the Equal Protection Clause should stand alone from other parts of constitutional law, and not permit as-applied challenges:
JUSTICE KAGAN: Mr. Hurst, I want to take you back to our conversation about whether there’s such a thing as as-applied equal protection challenges and ask you for two things. The first is –is I do think that that runs counter to a couple of things that we think of as basic principles of constitutional law and maybe equal protection law particularly. In constitutional law, we often say as-applied challenges are the preferred mode of constitutional adjudication. Certainly, we have not erected, like, bars to them in any other area as far as I understand it. And then, in equal protection law, we say all the time things like people need to be treated as individuals and not as –just as members of a group. And I’m wondering whether both of those principles don’t suggest that any bar on equal protection –as-applied equal protection challenges is –is just wrong, is off. And then the second thing I want you to do after you do that is –is assume for me that there is such a thing and to tell me how in your view an as-applied equal protection challenge ought to work in this case.
Kagan asked Hurst “What would it look like, do you think?” Hurst said it was hard to answer the question: “I’m having trouble coming up with what it could look like because it will always be possible to carve the class down further, right, I mean.”
Principal Deputy Solicitor General Hashim Moopan, who argued both Hecox and B.J.P. speculated how an as-applied claim might work with intermediate scrutiny during a colloquy with Justice Thomas:
MR. MOOPAN: Now, I’m not disputing that you can sometimes bring as-applied claims under intermediate scrutiny. So if, for example, you had a law that applied –this sort of law that applied to sports but also math and also chess, it might be that, as applied to math or chess, it was invalid, but it was valid as to sports because it –for math and chess at the level of the classification, it’s not reasonably tailored. But here, critically, everyone agrees that for sports, for 99 percent of men, it’s reasonably tailored. It’s just the 1 percent of trans-identifying individuals who take drugs and then those drugs are effective that’s a problem. And this Court’s decision in Michael M. makes clear that that’s not a viable as applied claim.
Justice Kagan pushed back on Moopan, and asked:
JUSTICE KAGAN: Is there ever a time where a person can come in, either on behalf of herself or on behalf of a subclass, and say notwithstanding that there is no valid facial challenge here, there is an as-applied challenge; this subclass has to be exempted?
Mooppan acknowledged that the Court hadn’t addressed this issue:
MR. MOOPPAN: So it’s a hard –I don’t think this Court’s cases have ever squarely addressed that. I think if it could be brought, it would have to be a very substantial percentage. So to give you a stylized hypothetical, if you had a law that regulated on the basis of sex and you could imagine three subgroups of males. For subgroup 1 and subgroup 2, each of whom are a third of men, it was reasonably tailored. But, for subgroup 3, which was a third of men, it wasn’t. Maybe, in a circumstance like that, the third subgroup could come in and say, for a third of the applications of this law, it’s not reasonably tailored. That’s not enough of a substantial fit at least for us even if you’re going to uphold the law for the other two thirds of that.
Mooppan returned to this issue later:
MR. MOOPPAN: You know, again, the Court’s cases haven’t really talked about it. I think the way I would think about it analytically is the difference between intermediate scrutiny and strict scrutiny is the difference between a perfect fit and a reasonable fit. So is there enough of a group here that we think that we’re not essentially holding the state to perfection? If it’s so close to perfection, then you’re really undermining the difference between the two. If it’s a big enough group that it –we’re not asking for perfection.
Justice Jackson was also interested in this topic. She asked about a class of one. Though she did not mention Olech, she brought up to two precedents from the Burger Court: Caban v. Mohammed (1979) and Lehr v. Robertson (1983).
JUSTICE JACKSON: In other words, the as-applied challenge essentially redefines the class or one could think of it as that. And so what’s wrong with that, number one? And how do you square that with our holdings in Caban, which Lehr later described in this way. In other words, Lehr suggested that Caban was establishing that as-applied challenges of this nature do exist.
In candor, I had never heard of either Caban or Lehr. (An amicus brief from Equal Protection Scholars discusses these precedents.) Justice Sotomayor, in particular, was very interested in Justice Stevens’s dissent in Caban. I doubt either case will have much purchase on the Roberts Court. My general rule of thumb is that a Supreme Court precedent, which is not directly on point, loses all persuasive effect when no one who participated in that case remains on the Court.
Justice Barrett stated these cases could be read different ways, and were uncertain. Barrett further said this argument could “have implications for all kinds of review.” In particular, Barrett worried how this approach could undermine intermediate scrutiny.
JUSTICE BARRETT: So, Mr. Mooppan, when Justice Kagan started asking the questions early on about the as-applied equal protection challenges, she pointed out that there was kind of a surprising dearth in the case law really grappling with this. But I think you wouldn’t be getting all the questions that you’re getting about Caban and Lehr and, you know, Michael M. and VMI if it weren’t the case that you can read some lines of cases either way. So let’s say that there is this uncertainty, we haven’t really confronted it. As far as I can tell, it’s because it just wouldn’t be relevant in strict scrutiny because it’s often fatal in fact –or typically or almost always fatal in fact. So it’s really an intermediate scrutiny problem. Maybe it’s a rationale basis problem too. I mean, maybe this would have implications for all kinds of review, because it seems to me that if you’re never talking –in –in any case in which scrutiny is not talking about a perfect fit, you might have this problem. What would it do essentially –I’m just trying to think about the ramifications of allowing as-applied challenges. It seems like it’s at war with the theory of intermediate scrutiny for some of the reasons that Idaho said, because all lines, all classifications overshoot or undershoot, right? So can you imagine how intermediate scrutiny works? And this is –I’m not –I’m not –this isn’t designed to be a lay-up or something. It’s honestly just something I’m I’m grappling with. How would it even work going forward?
Barrett seemed persuaded by Mooppan’s response:
MR. MOOPPAN: So I’m not sure I can say a whole lot more than what I’ve already said, which is I do think it’s a problem. The reason I think it’s a problem is it’s conflating the difference between strict scrutiny and a perfect fit –
JUSTICE BARRETT: Yeah.
MR. MOOPPAN: –and intermediate scrutiny in a reasonable fit. And I worry that if you allow as-applied claims to a small enough group, you’re essentially collapsing the difference because you’re essentially requiring a perfect fit, because whenever you have a reasonable but not perfect fit, the subset who falls within that will come in and bring an as-applied claim. And so the state will essentially have to have perfectly tailored laws because any single person who –for whom you don’t have a perfect fit could come in and bring an as-applied challenge.
As I read the exchange, Kagan’s suggested approach would conflate strict scrutiny and intermediate scrutiny. Sounds like a recipe for disaster. In other cases, I’ve speculated that Justice Kagan was trying to win over Justice Barrett. Whatever Justice Kagan was trying to do in Hecox, it did not persuade ACB.
Justice Jackson was worried about the opposite problem of not allowing as-applied challenges for Equal Protection cases. Facial challenges are more difficult, while as-applied challenges are (in theory) easier. Barrett’s approach, Jackson said, would foreclose the easier option for plaintiffs to prevail.
JUSTICE JACKSON: So Justice Barrett is worried, I think she said, about the implications of allowing as-applied challenges. I guess I am worried about the implications of not, because, as Justice Kagan said, we have consistently said that facial challenges are really hard to get, that as-applied is really all there is. So now we’re in a world in which you are setting up new barriers, in my view, to establishing an as-applied challenge. So at the end of the day, is your position that, you know, no matter how clear it is that the particular prescription is operating to disadvantage a particular group, classifies you, treats you differently, you’re just not going to be able to get a remedy for that individually in –anymore?
MR. MOOPPAN: Let me take a step back, and then maybe this will help. Laws that classify, in general, are subject to rational basis review. Now there’s higher scrutiny for classifications on some things. For race, we have strict scrutiny. For sex, we only have intermediate scrutiny. What that means is it is okay to have a classification that doesn’t operate perfectly for each and every person. So it’s not the problem that it’s unconstitutional but there’s no remedy. The point is that it is constitutional even though it’s overbroad.
Where the government acts constitutionally, not even an as-applied challenge will afford a remedy. I think much of the confusion in this case stemmed from a conflation of whether a claim can even be stated, whether the claim is valid, and what the remedy ought to be.
I implore the Court to not say a word about as-applied equal protection challenges. This fad has already mucked up the First Amendment in NetChoice, the Second Amendment in Rahimi, and the APA in VanDerStock. The Court should decide this case how it was presented, and let the issue linger in a Kagan concurrence.
