8
UNITED STATES v. HANSEN
Thomas, J., concurring
justified it “solely by reference to” yet another layer of “policy considerations and value judgments” about “what serves the public good.” Id., at ___–___ (slip op., at 3–4). As the debate over the federal council of revision demonstrates, this approach is fundamentally inconsistent with judicial duty.
This case demonstrates just how far courts have drifted from their original station of adjudicating the rights of the parties before them in accordance with law.[1] In an appropriate case, we should carefully reconsider the facial overbreadth doctrine.
- ↑ The facial overbreadth doctrine is but one manifestation of the Court’s larger drift away from the limited judicial station envisioned by the Constitution. See J. Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 36–37 (2010). Justices have long noted that doctrines tasking judges with passing upon the policy of laws in the abstract resemble the council of revision the Framers rejected. See, e.g., Lewis v. New Orleans, 415 U. S. 130, 136 (1974) (Blackmun, J., joined by Burger, C. J., and Rehnquist, J., dissenting) (overbreadth and vagueness doctrines); see also Trimble v. Gordon, 430 U. S. 762, 778 (1977) (Rehnquist, J., dissenting) (suspect classifications under the Fourteenth Amendment); Griswold v. Connecticut, 381 U. S. 479, 513–515 (1965) (Black, J., joined by Stewart, J., dissenting) (substantive due process); Goldberg v. Kelly, 397 U. S. 254, 273–274 (1970) (Black, J., dissenting) (due process for welfare benefits); Saia v. New York, 334 U. S. 558, 571 (1948) (Jackson, J., dissenting) (review of time, place, and manner speech regulations).
