A conservative judge’s criticism of the Supreme Court’s dependence on tradition

Judges committed to originalism, which seeks to interpret the Constitution based on what it meant when it was adopted, often say they are guided by “text, history and tradition.” The sentence rolls off the tongue nicely.

But one of those things is not like the others, a conservative federal appeals court judge said this month a lively conversation at Harvard Law School, who criticized recent trends at the Supreme Court.

“Traditionalism radiates an originalist ‘vibe’ without making any legitimate claim to the originalist mantle,” the judge said. Kevin C. Newsom, who was appointed by President Donald J. Trump in 2017 to the U.S. Court of Appeals for the 11th Circuit. “It seems old and dusty – and therefore objective and reliable. And maybe it is indeed all of those things. But let’s be clear: it is not originalism.”

The Supreme Court’s blockbuster decisions for 2022 abolishing the right to abortion And expand gun rights both drew on traditions that emerged after the constitutional provisions in question were ratified. The statements were not based on their discussion of tradition, but they were not minor asides either.

Numerous decisions, including those of all outspoken originalist legal scholars, are based on post-ratification traditions. Sherif Girgisa law professor at Notre Dame, demonstrated this in a comprehensive exploration of the subject published last year in The New York University Law Review.

“Although the method is becoming increasingly dominant in the views of this originalist court,” he wrote, “this method has no clear justification in originalist terms.”

Professor Girgis mentioned his article ‘A living traditionalism’ a nod to and criticism of the liberal counterpart of originalism, ‘living constitutionalism’, which takes social changes and contemporary circumstances into account when interpreting the foundation of the nation.

“Living traditionalist statements concern the separation of powers between Congress and the President, federal court issues, states’ rights, and individual rights,” Professor Girgis wrote. “They have interpreted provisions in all three articles defining the three branches, all ten amendments in the Bill of Rights (minus the Third), and the Fourteenth Amendment.”

“Yet,” he wrote, “the court’s reasons for a living traditionalist approach were obscure.”

The other two parts of “text, history and tradition” are good considerations for originalists, Judge Newsom said at a conference sponsored by The Harvard Journal of Law & Public Policywho will publish his lecture.

The text is simple: the words of the Constitution are of course the best evidence of its meaning.

But those words are old and history may clarify what they meant when they were passed, Judge Newsom said.

Tradition – by which judges and scholars generally mean official actions taken after, and sometimes long after, ratification – is another matter. “Traditionalism involves invoking and relying on principles and insights that are vaguely old-fashioned,” the judge said, but that have “no demonstrable connection with the original written text.”

He said: ‘I’m afraid that traditionalism is far too amorphous and manipulable as a criterion.’

In a unanimous opinion in the Second Amendment case, Justice Amy Coney Barrett questioned the majority’s methodology to that effect, saying diplomatically that it “does not adequately determine the manner and circumstances in which post-ratification practice may affect the original meaning of the Constitution.”

One of the questions she said the majority left open: “How long after ratification can subsequent practice clarify the original public meaning?”

A good example of looking at tradition is the 2014 Supreme Court ruling National Labor Relations Board v. Noel Canning, in which some recess appointments were approved by presidents based on practices long after the Constitution’s ratification. Justice Stephen G. Breyer, writing for the majority, said the court “should hesitate to disrupt the compromises and working arrangements that the elected branches of government themselves have reached.”

In a book to be published next monthJudge Breyer, who retired in 2022 and is by no means an originalist, defended his approach. “Long-standing practice matters,” he wrote in the book, the title of which explains his position: “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”

“The public’s methods of conducting their affairs will have to change depending on the circumstances,” Judge Breyer wrote. “It is the judge’s job to read literally the constitutional provisions written 250 years ago without taking into account such changes.”

Justice Antonin Scalia, a leading originalist who died in 2016, disagreed with much of Justice Breyer’s majority opinion in the recess appointments case. But he agreed that there was a role for traditionalism. “Where a government practice has been open, widespread, and unchallenged since the early days of the Republic,” Justice Scalia wrote, “the practice should guide our interpretation of an ambiguous constitutional provision.”

Professor Girgis has a theory as to why, as he put it in an email, “traditionalism is on the rise under an originalist court.”

“Now that originalism has gone from an opposition movement to the ruling party, so to speak, it runs into trouble because the text is sparse and ratification-era debates do not shed much light on the original meaning or intent,” he wrote.

Traditionalism, he said, can be “the second best option” because it “at least tries to rest decisions on something other than the judges’ own value and policy judgments.”