Text, History, and Tradition in the 2021-2022 Term: A Response to Professors Barnett and Solum

 By Eric Segall

The 2021-2022 Supreme Court term was one of the most important in American history. In Dobbs v. Jackson Women's Health, the justices returned the issue of abortion completely to the states (and potentially Congress). In New Yok State Pistol & Rifle Ass's., v. Bruen, the Court substantially limited the ability of states to pass meaningful gun control laws. And in Carson v. Makin and Kennedy v. Bremerton School Dist., the justices further weaponized the free exercise clause as a restriction on the states while further limiting the reach of the establishment clause. 

Constitutional law scholars across the ideological spectrum have been trying over the last seven months to make sense of these decisions and how they relate to originalism and the use of text, history, and tradition in constitutional law. One such effort is a recent article by two of the country's most prominent academic originalists--Professors Randy Barnett and Lawrence Solum. Their article, "Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition," is a complex and provocative assessment of three of the cases discussed above (they leave out Carson), as well as the authors' suggestions for how best to incorporate history and tradition into originalist judicial decision-making. There is little doubt this article will be widely-read and will constitute a major contribution to our academic debates over originalism. The authors posted the paper on SSRN just a few days ago and it already has over 1000 downloads.

The article says that it asks three major questions about the 2021-2022 term:

Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

These are all important questions that judges and scholars will be wrestling with for a long time. Although the article might be a tad clearer on the authors' answers to the second and third of these questions, as to the first one, they state that "none of the cases from the October 2021 Supreme Court term represent a radical departure from prior uses of history and tradition by both public-meaning originalists and constitutional pluralists. The Court has not embraced a novel history-and-tradition alternative to either originalism or living constitutionalism." 

I am going to focus on their first question in this blog post but also want to make clear the authors' reflections on the second two questions are interesting, important, and will certainly trigger much needed debate among originalists, living constitutionalists, and Court commentators of all stripes.

Contrary to Professors Barnett and Solum, I think last year's term both represents a radical departure from prior constitutional decision-making in some important respects but also represents business as usual in other important ways they don't discuss. I will start (and then end) with the latter observation.

Why did the Court return abortion to politics, strengthen the Second Amendment, and enlarge the reach of the free exercise clause at the expense of the establishment clause? On one level, a level mostly ignored by Barnett and Solum, the answer is easy and applies to all three cases: the Court has a majority of conservative justices whose values and ideologies support all three decisions (and three liberals whose values and ideologies led them to dissent in all three cases). To many Court observers, we could probably stop there. It is the very nature of Supreme Court constitutional law decisions that in most cases the public cares about, the justices will vote their value preferences. Barnett and Solum leave out two major cases from last term, West Virginia v. EPA and, as mentioned earlier, Carson v. Makin, and in both of those cases the votes were also 6-3 along the same ideological and partisan lines. 

Thus, last term was business as usual with the justices voting their priors in the most important cases. This "legal realist" description is not arguable but Barnett and Solum might well reasonably respond, "so what?" First, they could argue that no lawyer can use that description in further arguments before the Court, so that kind of realist observation won't make a difference to constitutional litigants. Second, the justices themselves do not think they are just voting their preferences but rather that they take text, history, tradition, and precedent seriously and those commenting on the decisions should take them at their word. And their word is not simply their personal values and ideologies.

My response to the first possible objection, and I think Barnett and Solum would agree with this, is that legal scholars have obligations that go beyond litigation tips for future cases. Although doctrinal scholarship is important, so is giving law students, lawyers, judges, the media, and the public meaningful and accurate information about how the Court operates. And the Court operates in big cases quite consistently: liberals vote liberal (Ginsburg and Sotomayor among others), conservatives vote conservative (Scalia, Thomas, and Alito among others), and moderates vote moderate (White, O'Connor, and Kennedy among others).  It is important that this trend be identified by legal scholars because it accurately reveals something important about how the Court works and puts the justices' work in perspective.

As to the second possible objection, the internal perspective is simply not enough to describe with accuracy what the justices are doing and why. The important constitutional law cases the Court decides are often country-changing and country-defining with huge implications for the American people and sometimes the world. Like with difficult parenting or career decisions, we are conscious of only a part of our decision-making processes and outside observers familiar with our personal circumstances can sometimes provide important insights that the personal perspective simply cannot. Much professional therapy is based on that very notion.

Truly comprehensive and accurate answers to the important questions raised by Barnett and Solum should include at least a nod to the realist critique. The article does discuss and rejects as a normative matter both conservative and liberal "constitutional pluralism," but that phrase simply doesn't do justice to the pull of ideology on the ground in Supreme Court decisions. 

The authors do, at the end, make some substantial normative observations about both the central importance of originalism to constitutional interpretation and how history and tradition should and should not inform constitutional interpretation. There is much to be said, both positive and negative, about those observations, which are rich and interesting but also feel incomplete without at least some discussion of the role that ideological priors play in the Court's cases.

As to whether last term represents a "radical departure" from prior cases, I think there is a good argument that Bruen does represent such a departure but, of course, only time will tell. When it comes to precedent on the Court, the future of most important cases rests on the ideologies of the justices on the Court at the later time. The authors might accept that point because they strongly urge future justices to overturn prior non-originalist precedent but what counts as "non-originalist" precedent will, of course, depend on the values of future justices.

Despite the warning above, I think it is fairly clear that Bruen represents a radical departure from prior constitutional doctrine. The Justices invalidated a century-old New York law requiring a special permit to carry a concealed weapon solely on the basis of text and history while firmly rejecting the oft-used and traditional "mean-end" scrutiny test the justices have employed in major constitutional cases since at least Reconstruction. In most cases, the justices ask whether the burden on a right is justified by the state's interest or objective in limiting that right. As I've written before, Bruen is anti-originalist in this regard because the founding fathers expected judges to balance the importance of rights against the public interest in limiting the right. Barnett and Solum seem to agree that Bruen is non-originalist (albeit for different reasons). They say that:

Evaluating the constitutionality of firearms regulations by comparing them to regulations that have been traditionally accepted from the founding until today is not a method for identifying the original meaning of the text. And if an originalist theory of constitutional construction requires a reliance on conformity with the original functions or purposes of the relevant textual provision ... then relying instead on the tradition of regulation is non-originalist.

More importantly, prior to Bruen, the Court had not explicitly rejected any and all balancing as erroneous constitutional interpretation. Even if this text-and-history-only approach is limited to Second Amendment cases, which nothing in the decision says it is, this rejection of any and all means-end scrutiny represents a "radical departure." This mode of analysis effectively changes how just about every circuit court had approached gun rights cases.

Barnett and Solum seem to agree with much of this. They write the following:

Means-ends scrutiny has traditionally been the method courts have used to distinguish reasonable exercises of legislative regulatory power from unreasonable infringements of liberty. Such scrutiny seeks to establish a sufficient connection between a regulation of a rightful exercise of liberty and the proper scope of legislative power. The use of means-ends scrutiny has varied widely over the years, from highly deferential to highly skeptical and anywhere in between. 

I agree with every word of that description so it is somewhat surprising that Barnett and Solum conclude Bruen does not represent a radical departure from prior doctrine. Other Court observers have argued that Bruen in fact is a radical departure from prior doctrine because it rejected any means-ends scrutiny.

If the Court is serious about its Bruen text-and-history-only approach, the implications are enormous. Bruen essentially asks lower courts to determine whether any founding era laws, or subsequent laws and traditions, are similar to the law at issue in the case. If not, judges must strike the law down. The problems with this approach are many. Judges, lawyers, law clerks, and law professors are not historians, and judges are ill-equipped to be historians. Moreover, times change, people change, and facts change. What is a comparable law in a different time and place is highly subjective and will lead to more not less judicial discretion. And, finally, as Barnett and Solum recognize to their credit, originalists should not be comfortable with the Court using post-ratification traditions to determine whether a law should be upheld or not because such traditions may not shed any meaningful light on the original public meaning of the constitutional text.

In short, Bruen may well represent a radical change from prior doctrine. Admittedly, most of Barnett's and Solum's article is focused on the complex relationships among text, history, tradition, and originalism. And there is much in their article for originalists and living constitutionalists to discuss and debate (and they will, justifiably). But the authors did raise the question of whether last term represented a radical departure from the past, and I think Bruen, if taken seriously, is such a departure.

One last point about Barnett's and Solum's paper. One of their goals is to place last year's term in an appropriate context. But last term was more than the three cases they discuss. Although the authors candidly concede that Kennedy v. Bremerton "sheds very little light on the role of history and tradition on the contemporary Supreme Court," they fail to mention that the other hugely important free exercise case from last term, Carson v. Makin, also has virtually no history in it either. So are history and tradition not relevant to free exercise cases but determinative in Second Amendment cases? Without further clarification from the Court, that seems both odd and yet one of the most significant lessons of last term. 

The reality of the Court's decision-making since Justice Barrett gave the Court its fourth self-identifying originalist is that sometimes history and originalism are front and center and sometimes they are completely absent. And if, as is likely, there is no coherent explanation for this phenomenon, then that picking and choosing suggests something else is going on, and whatever that is, whether it is because of collegiality as Barnett and Solum hint at, or for other reasons, the answer does not lie in text and history but in the subjective non-originalist value preferences of the justices. And, in that sense, and maybe only in that sense, last year's term was just business as usual at the Supreme Court of the United States.