How the Supreme Court Declared Independence
Every year over the Independence Day weekend, I like to carve out an hour or two away from the beer and barbecue to re-read the Declaration of Independence and reflect on why the country is celebrating. I found myself struck by how unique the spirit of the American Revolution was in comparison to other such movements. Like many less successful revolutions, it represented a radical change, and was led by individuals with ambitious new ideas about how to structure the Nation’s political life. But the Founding Generation was wise enough to root their revolution in timeless Enlightenment principles, and the longstanding precepts and protections of the English Common Law. They freed themselves from the tyranny of the Old World, but it was their dedication to the ideals of limited government, free enterprise, and the rule of law that secured that freedom for their posterity.
It’s fitting then, that the Supreme Court used the last two weeks of its 2021–2022 term to declare independence from the poorly reasoned precedents of their predecessors. In a five-day period, the Court overturned Roe v. Wade, reaffirmed D.C. v. Heller, and finally did away with the much-maligned “Lemon test.” This term has radically altered the state of play on abortion, guns, and religious expression. That is, the Court has changed the game on some of America’s most controversial topics.
At first glance, these three cases—Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association v. Bruen, and Kennedy v. Bremerton School District— appear to have very little in common. Understandably, most commentary has thus far focused on what these cases mean for the future regulation of abortion, guns, and school prayer. But, lost in the tumult is what I believe to be the real story linking these seemingly disparate cases together, namely, a decisive shift in how the Supreme Court will address constitutionally protected rights in the future.
You see, each of these three decisions is built upon the principle that policy judgments, the subjective balancing of interests, and the slavish devotion to precedent have little-to-no place in constitutional interpretation. The Supreme Court has now declared that an analysis of the Constitution’s text as informed by history and tradition is how issues should be decided. Such an idea represents a sea change in constitutional law, unrivaled since the Court abandoned opposition to the New Deal’s expansion of federal power in the 1930s.
In Bruen, the Court explicitly castigated lower court judges for ignoring the test set forth in Heller and applied to the states in McDonald v. Chicago. Those judges had instead utilized an “intermediate scrutiny” approach to the Second Amendment, weighing individuals’ right to armed self-defense against the state’s policy interest in addressing gun violence. That approach often resulted in judges, unwilling to second-guess the preferences of policy makers, rubber-stamping outright unconstitutional policies.
Instead, the Supreme Court held that while interest-balancing and deference to legislatures may be acceptable (or even necessary) in ordinary statutory interpretation, they are wholly inappropriate when dealing with constitutionally protected rights. Judges should now look to the Second Amendment’s “text, as informed by history.” Gone are the days when cities and states could simply assert an interest in regulating firearms, safe in the knowledge that whatever restriction they pass would be upheld by the federal courts. From now on, the government must have a clear historical precedent to support all future firearm regulations and demonstrate that the regulation would not have violated the Second Amendment at the time of ratification.
The Dobbs decision is similarly focused on an historical approach to constitutional interpretation. In overturning Roe and its successor case, Planned Parenthood v. Casey, the Court spent dozens of pages stressing the ahistorical nature of those two decisions. It catalogued the arc of abortion regulation in England and the United States from the 13th Century through the 1970s in an effort to determine whether the right to abortion is “deeply rooted in the Nation’s history and traditions,” and thus within the scope of unenumerated rights protected by the 9th and 14th Amendments. The question, according to the Court, is not whether modern Americans think abortion is a fundamental right (we’re welcome to engage in the democratic process to enshrine that in law if we so choose), but whether the Fourteenth Amendment considers abortion a fundamental right. Contemporary concerns about public health or the Supreme Court’s popular reputation are, again, wholly inappropriate factors for a judicial body engaged in constitutional interpretation to consider.
Kennedy, while not quite as high profile as Bruen and Dobbs, reflects the same concerns. In explaining its decision to put the final nail in the coffin of the Lemon test’s “ambitious, abstract, and ahistorical approach” to determining whether an action violates the Establishment Clause of the First Amendment, the Court emphasized that any analysis must be informed “by reference to historical practices and understandings.”
While the policy concerns that understandably motivate most people reacting to the Court’s recent opinions are important, the broader implications of the decisions have thus far been largely ignored. The Supreme Court’s ascendant originalist majority has used the blockbuster cases of this term to signal a tectonic shift in constitutional jurisprudence unlike anything we’ve seen since the New Deal. Only time will tell how firmly this new approach will take root among the lower courts, or how consistent the Court will be in its application. The message from this term, however, is clear—a judge’s duty is to the text of the Constitution, not the judicial philosophy of seven justices in 1973. The justices took the opportunity leading up to the Fourth of July to declare their independence from decades of poorly reasoned and unprincipled precedent, from the weighing of policy preferences, and from subjective interests. And they did it by returning to the timeless principles this Nation was founded on. I can think of no better gift for Lady Liberty for her birthday.