From Nate Raymond at Reuters: Judge criticizes US Supreme Court's reliance on historical 'tradition'. From the introduction:
A conservative federal appeals court judge is criticizing how the current U.S. Supreme Court relies on historical "tradition" to justify its major constitutional rulings including in landmark cases on abortion and gun rights, saying its approach risks leaving "too much to individual judges' discretion."
U.S. Circuit Judge Kevin Newsom, an appointee of Republican former President Donald Trump on the Atlanta-based 11th U.S. Circuit Court of Appeals, laid out his critique during a speech on Saturday at a symposium in Cambridge, Massachusetts, hosted by the conservative Harvard Journal of Law and Public Policy.
The judge made clear he is an adherent of the conservative legal doctrines of originalism and textualism and seeks to interpret laws and the U.S. Constitution based on their written text as understood at the time of their drafting.
But Newsom said while history was important to understanding the meaning of words in the Constitution, courts too often are citing practices and laws that arose "years, decades, or even centuries after a particular provision’s ratification" as evidence of a historical "tradition" of how it is interpreted.
He said he worried that "traditionalism gives off an originalist 'vibe' without having any legitimate claim to the originalist mantle," saying that historical evidence that post-dates a provision's adoption is "positively irrelevant."
And from later on:
He reserved much of his criticism for recent Supreme Court rulings on Article III standing, particularly its 2021 opinion in TransUnion v. Ramirez, which said individuals must be able to show concrete harm to have standing to sue private defendants for damages.
Newsom, who has argued for a broader approach to standing under Article III, said that 5-4 ruling cited in part types of torts that did not materialize until the late 19th Century, long after the Constitution was drafted, to justify its holding.
"I worry that TransUnion's approach, which looks vaguely to 'tradition[]', but not to original, Founding-era understanding, leaves too much to chance – and thus to individual judges' discretion," he said.
Agreed, at least as to general principles (I don't have an opinion about TransUnion). Immediate post-ratification evidence can be useful, if used carefully, to resolve ambiguities; the further one gets from ratification the less relevant it is. (Though I'll note that Justice Scalia often went pretty far beyond ratification, as discussed here.) I remain uncertain to what extent the "history and tradition" formulation is in tension with this proposition.
Posted at 6:07 AM