Jennifer Mascott (George Mason University – Antonin Scalia Law School) has posted Text, History, Tradition, and the Kavanaugh Court (Harvard Journal of Law and Public Policy, forthcoming) (5 pages) on SSRN. Here is the abstract:
As many scholars have observed, the Supreme Court’s recent opinions in Dobbs and Bruen have brought analysis of history and tradition alongside constitutional text into the foreground of constitutional interpretive discussion. After a strong run, in which the original public meaning and related originalist approaches to constitutional interpretation have gained prominence, theorists might wonder why the Court took this doctrinal and potentially significant theoretical turn.
Original meaning methodologies aim to identify the objective meaning of text at the time it became law. The text, history, and tradition approach looks to longstanding practices and history around the time of the formation of the source of law under review, a significantly different enterprise. Why would the Court, in two of the most significant constitutional opinions of the twenty-first century, seem to shift course, move beyond original meaning, and emphasize history and tradition?
Well-known originalist scholars Randy Barnett and Larry Solum offer several insightful theories for integrating the history and tradition reasoning of Dobbs and Bruen into an originalist framework. This essay, however, suggests that the Dobbs majority opinion’s embrace of history and tradition and reliance on Washington v. Glucksberg’s substantive due process analysis likely originated in large measure as a reflection of the influence of Justice Kavanaugh’s jurisprudence on the direction of the Court. Barnett and Solum offer ways to bring Dobbs and Bruen into alignment with the Court’s jurisprudential priors. Dobbs, in particular, also presents an example of the Court’s role as a multimember decisionmaker, wrestling with negotiation and careful working of opinion text in a manner reflecting the reality that majorities must get to five.
The existence of Glucksberg as a substantive due process precedent setting forth a roadmap for denial of protected interests without a record of “deep[] root[s]” offered an alternate line of Fourteenth Amendment precedent in 2022. Rather than the Court throwing off all substantive due process privacy precedent, signing an opinion leaning on Glucksberg’s denial of non-historically granted rights may have provided a welcome alternative for jurists focused on stare decisis. Justice Kavanaugh’s history of studying former Chief Justice Rehnquist’s approach to case law and due process jurisprudence suggests Kavanaugh may have identified the Glucksberg framework as a key component of the soundest basis for deciding Dobbs consistent with the Court’s prior Fourteenth Amendment cases.
This essay will unpack Kavanaugh’s doctrinal approach as a lower court judge and his past thought leadership and philosophy related to interpretation, precedent, and Fourteenth Amendment jurisprudence. This survey provides a strong indication of Kavanaugh’s jurisprudential influence on the Court’s decision to turn to history and tradition, and Glucksberg, as a foundation in Dobbs and potentially even in Bruen.
Posted at 6:39 AM