Chief Justice of the United States John Roberts in Washington, Monday, Jan. 20, 2025. Julia Demaree Nikhinson/Pool via REUTERS
When rationalizing its alarming injection of politics into legal decision, conservatives on the John Roberts Supreme Court are dumping years of legal analysis and precedent in favor of historical arguments. In essence, legal theory appears to be taking back seat to what law in America used to look like, says Florida International University philosophy Associate Professor Eric Scarffe.
They’re using history, said Scarffe, to do what judicial philosophy long has not: remove judgment from judging.
“Rather than promoting judicial restraint, … key cases reveal how the ‘history and tradition test’ has been weaponized to enable one of the most radical revisions to this nation’s constitutional order since the New Deal,” argued Scarffe. “It has been used not only to overturn previous decisions and precedent, but also to fundamentally shift the way the Court engages in judicial review.”
Courts traditionally weigh interests, assess evidence, and openly confront competing constitutional values. But cases like the Wolford v. Lopez, which the court used to strike down Hawaii’s restrictions on carrying firearms on private property that is open to the public, the court made a decision based entirely upon whether a sufficiently similar restriction existed at some point during the nation’s founding.
This can be used to kill a lot of good laws, considering many of them did not exist at the nation’s founding. In Dobbs v. Jackson, for example, the Court did not ask whether abortion restrictions infringed upon choices central to dignity and autonomy, said Scarffe.
“Rather, it asked whether a constitutional right to abortion was deeply rooted in the nation’s history and tradition. The Court’s answer, of course, was that it was not.”
Scarffe argues that it’s hard to escape the conclusion that this is the point very point of employing the history test.
“First, if we take the history and tradition test to its logical conclusion, more than just abortion rights are at stake. Indeed, it seems unlikely that you would find deeply rooted in this nation’s history rights to the use of contraceptives, gay marriage, interracial marriage, or even the idea that rights articulated in the Constitution place limits on state governments (as opposed to just the federal government),” said Scarffe.
Second, Scarffe said the history and tradition test is no longer being used by the Court to step lightly on so-called unenumerated rights not written into the Constitution, like abortion or physician-assisted suicide. Rather, it is being used to declare unconstitutional laws passed by the federal or state governments, like the Voting Rights Act or Hawaii’s gun legislation.
“Far from being a tool to let states decide for themselves, this past term the history and tradition test has morphed into a tool for the conservative majority to overturn progressive precedent and progressive legislation,” warned Scarffe. “The Court, in short, is making perhaps its strongest case to date for the need for its reform, should Democrats take back the House this fall — for if the Court now claims authority to strike down any legislation that does not fit its politics, there appear to be few other choices left.”
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