In a Politico article yesterday, reporter Josh Gerstein states that a “rift is emerging among the Supreme Court’s conservatives” over how the Court “should … use ‘history and tradition’ to decide modern-day legal issues.” Gerstein calls attention to the rather sharp disagreement in methodology between Justice Clarence Thomas and Justice Amy Coney Barrett in last week’s ruling in Vidal v. Elster (the “Trump too small” trademark case). Gerstein contends that Barrett made “what could be interpreted as a jab at the very premise of originalism” when she objected that Thomas’s majority opinion
presents tradition itself as the constitutional argument; the late-19th and early-20th century evidence is dispositive of the First Amendment issue. Yet what is the theoretical justification for using tradition that way?
Gerstein raises a large question, or set of questions, that I might address more fully down the road. For now, I will limit myself to these observations:
1. The “very premise of originalism” is not tradition. It is, rather, that the meaning of a legal text should be discerned in accordance with what it meant at the time it was adopted. So Barrett’s challenge to Thomas’s use of historical evidence from a century after the First Amendment was adopted in no way goes to the “very premise of originalism.”
2. The debate between Thomas and Barrett over the proper role of post-adoption history is a debate within originalism. It is a sign of the recent ascendancy of originalism, not a mark of its vulnerability, that this debate is occurring.
3. I don’t think it’s a simple matter to assert in the abstract what role post-adoption history should have. Much depends on what question is being contested.
Gerstein states that “five conservative justices” in Dobbs (including both Thomas and Barrett) “relied on the lack of ‘historical support’ for abortion rights.” It’s true, of course, that Dobbs reviewed the broader history of abortion regulation, both long before and also after the adoption of the Fourteenth Amendment. But it did so in the context of inquiring under Washington v. Glucksberg (1997) into whether an abortion right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Even then, Dobbs soundly identified “how the States regulated abortion when the Fourteenth Amendment was adopted” as the “most important historical fact.”
Dobbs, in other words, was not carrying out a straightforward originalist analysis, even as it qualifies (in Harvard law professor Stephen Sachs’s words) as “an originalism-compliant opinion, the kind a faithful originalist should write, reaching the right originalist result for what were essentially the right originalist reasons.” (Italics in original.) Originalists might well disagree on whether the Court should have applied Glucksberg’s “history and tradition” test, but no one can sensibly fault the Court for looking to “history and tradition” in applying that test.