6
CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009)
(counsel for Citizens United conceding that §203 could be
applied to General Motors); id., at 55 (counsel for Citizens
United stating that “we accept the Court’s decision in
Wisconsin Right to Life”).
“ ‘It is only in exceptional cases coming here from the
federal courts that questions not pressed or passed upon
below are reviewed,’ ” Youakim v. Miller, 425 U. S. 231,
234 (1976) (per curiam) (quoting Duignan v. United States,
274 U. S. 195, 200 (1927)), and it is “only in the most
exceptional cases” that we will consider issues outside the
questions presented, Stone v. Powell, 428 U. S. 465, 481, n.
15 (1976). The appellant in this case did not so much as
assert an exceptional circumstance, and one searches the
majority opinion in vain for the mention of any. That is
unsurprising, for none exists.
Setting the case for reargument was a constructive step,
but it did not cure this fundamental problem. Essentially,
five Justices were unhappy with the limited nature of the
case before us, so they changed the case to give themselves
an opportunity to change the law.
As-Applied and Facial Challenges
This Court has repeatedly emphasized in recent years
that “[f]acial challenges are disfavored.” Washington State
Grange v. Washington State Republican Party, 552 U. S.
442, 450 (2008); see also Ayotte v. Planned Parenthood of
Northern New Eng., 546 U. S. 320, 329 (2006) (“[T]he
‘normal rule’ is that ‘partial, rather than facial, invalida
tion is the required course,’ such that a ‘statute may . . . be
declared invalid to the extent that it reaches too far, but
otherwise left intact’ ” (quoting Brockett v. Spokane Ar
cades, Inc., 472 U. S. 491, 504 (1985); alteration in origi
nal)). By declaring §203 facially unconstitutional, our
colleagues have turned an as-applied challenge into a
facial challenge, in defiance of this principle.