Politics Archives – Southern California Law Review

In the Name of Accountability

September 2025September 2025Heidi Kitrosser*

Introduction

The Supreme Court has increasingly embraced legal doctrines that empower elected officials to hide politically inconvenient information and ideas from the American people. Two lines of precedent illuminate this phenomenon and its reach across seemingly disparate areas of the case law. The first is a development in First Amendment law known as government speech doctrine and the closely related rule that public employees receive no First Amendment protection for their work product speech—that is, for anything that they write or say while doing their jobs. This precedent puts at risk the ability of public employees or publicly subsidized experts—ranging from auditors hired to ferret out agency misconduct to scientists commissioned to study and report on changing climate patterns—to convey truthful information and competent, good faith analyses consistent with disciplinary and professional norms. The second line of precedent is the aspect of separation of powers law known as unitary executive theory (“UE theory,” “UE,” or “unity”). UE proponents argue that the president must fully control all discretionary executive activity in the United States, at minimum through an unfettered removal power. This jeopardizes the independence of federal actors who are charged with research and reporting on matters ranging from public corruption to public health.

The two doctrines not only have similar impacts on information and analysis in the United States, but also share a common rationale: political accountability. Proponents of government speech doctrine emphasize that the people can respond to government speech at the ballot box, rewarding elected officials for speech that they like or punishing them when they dislike what they hear. As for UE theory, supporters emphasize that the president is the only elected official in the federal executive branch. Indeed, they describe the president as more politically accountable than anyone else holding elected office in the United States, as the president alone is subject to nationwide election. It is crucial, they argue, that the president alone exercises discretionary executive power so that the people know whom to blame or reward electorally for the use of such power. Similarly, they brush away concerns about presidential abuses by stressing the ability of the people to punish transgressions at the ballot box.

The judiciary is far from alone in crafting and buttressing these schools of thought. To the contrary, UE theory was shaped and heavily promoted by the modern conservative legal movement well before the Roberts Court embraced it. Indeed, even as the Supreme Court rejected UE theory in the 1988 case of Morrison v. Olson, the Justice Department under Attorney General Meese relied on it internally and championed it externally along with the then-nascent Federalist Society. Today, with the support of the Supreme Court, and with Donald Trump retaking the presidency and characterizing career experts across government as parts of a rogue “deep state,” UE theory and its accountability rationale have more influence than ever.

Although, to my knowledge, no similarly probing intellectual history has been done with respect to government speech doctrine, the doctrine aligns intuitively with classic complaints about how Americans’ tax dollars are spent, including on public education, public broadcasting, and other forms of knowledge production. Such gripes are not intrinsically partisan, but they can be marshalled in a partisan fashion when framed as appeals to stop “wrongheaded” or “offensive” views from being supported by public funds. Over the past several years, we have indeed seen campaigns, in both legal and political realms, for elected officials to control the communicative output of a range of government programs. These campaigns often characterize civil servants as parts of a leftist deep state, echoing the rhetoric of unitary executive theorists. Their targets include elementary school teachers, college professors, and librarians whom they deem “woke” and indoctrinating. The major thread of argument in these political and legal attacks has been accountability—specifically, the notion that the electorate, through elected representatives, should get the final word on the content of publicly funded knowledge production. Framed in legal terms, the argument is that all such output is the government’s own speech.

Yet even as accountability serves as a rallying cry for proponents of UE theory and government speech doctrine, there is a profound tension between that call to arms and the negative impacts of both government speech doctrine and UE theory on the information ecosystem. This tension stems from two very different visions of accountability. Government speech and unitary executive arguments each focus on a thin vision of accountability, one that I have elsewhere called “formal accountability.” Formal accountability requires only that there exist some means, mainly the ballot box, by which the public can accept or reject officials.¹

A more robust vision of accountability—one that I label “substantive accountability”—recognizes that accountability “is a ‘they,’ not an ‘it.’ ”² Indeed, the casting of a single vote for an official—even assuming the opportunity to vote for or against them again some number of years later—is too blunt an instrument to constitute considered approval of all manner of decision whether big or small, technical or non-technical, anticipated or unanticipated. Rather, holding officials accountable entails countless acts over time, ranging from legislative oversight to internal and external whistleblowing to fearless investigative journalism. All of these acts—including, but not limited to, voting—require the gathering and exchange of information and ideas. In the longer-term, they require a knowledge ecosystem that reliably produces such communications and supports a citizenry capable of assessing them. If one’s goal is substantive accountability, then government speech doctrine and UE theory are woefully inadequate to achieve it. To the contrary, they profoundly undermine it, especially when they are interpreted broadly.

Given the growing importance of UE theory and government speech doctrine in both legal and political realms, it is more important now than ever to understand how they undermine, rather than protect, meaningful, substantive accountability. Viewing these two schools of thought together also helps us to see how doctrines across seemingly disparate areas of the law can interact with and buttress one another and be harnessed by partisan interests.

In Part I of this Article, I summarize the respective accountability-based cases for UE theory and government speech doctrine. I explain that each rationale is premised on a simplistic, formal vision of accountability. In contrast, I argue that substantive accountability, which is antithetical to UE theory and to broad interpretations of government speech doctrine, is more faithful to constitutional principles and more desirable as a practical matter. In Part II, I elaborate on and illustrate the points made in Part I by drawing from the major Supreme Court cases on UE theory and government speech doctrine. In Part III, I present several examples of how UE theory and government speech doctrine have been wielded in the courts and the political branches to undermine substantive accountability. In Part IV, I consider where the case law leaves openings to impose limits on each doctrine to preserve substantive accountability.

I. Substantive Accountability and the Constitution

Proponents of UE theory and government speech doctrine assume a very simplistic vision of government accountability. In the case of UE theory, they suggest that because the president is the only elected member of the executive branch, he alone can be accountable to the people in executing the law.³ Thus, UE proponents bolster their textual and historical arguments—which I and others have discussed elsewhere⁴ and which I address briefly in Part II—by suggesting that accountability is a core reason why text and history dictate a unitary executive,⁵ and that accountability independently demands a unitary executive.⁶ Proponents elaborate further on presidential accountability by comparing the president not only to unelected bureaucrats, but also to members of Congress. Although the latter are elected, the argument goes, the president alone is subject to election by the entire nation through the Electoral College. He is also uniquely visible in culture and society.⁷

In the case of government speech doctrine, the Supreme Court and other proponents have treated accountability—again, in the form of elections—as a safety net that enables the people to register disapproval of unpopular government speech. They also suggest that government speech itself bolsters accountability, both in the sense that the government can give the people what they want through speech and that it can seek to persuade them through speech.

A number of scholars have critiqued the Court’s treatment of accountability in both UE theory and government speech doctrine cases. With respect to UE theory, critics observe that it massively oversimplifies how accountability is achieved as a practical matter. Indeed, it seems naïve to believe that a single vote for president held once every four years can bear the accountability load for virtually all executive branch activity. Even if we put aside the Electoral College—on account of which the popular vote winner lost the presidency twice in the last quarter of a century—and the fact that voters across the country are not a monolith, the assumption that a presidential election result constitutes a referendum on every discretionary decision of the executive branch, including the most obscure and technical ones, is heroic.⁸

Furthermore, to the extent that constitutional accountability is about the electoral relationship between the people and elected officials, those officials include members of Congress as well as the president.⁹ As Blake Emerson writes, unity proponents “do not grapple with the competing democratic authority of Congress to structure the Executive Branch.”¹⁰ To the contrary, unity is invoked to invalidate legislation passed by both houses of Congress—and, it is no small matter, signed by the president¹¹—that seek to create some independence from unfettered presidential control in the administrative state.

Many if not most of the statutory innovations targeted by unity proponents themselves are designed to foster accountability—for instance, by shielding internal investigations from direct partisan control. This is not to say that administrative independence always enhances accountability. The point, rather, is that devising structures to maximize accountability, let alone to do so while preserving other goals and values, calls for legislative innovation and flexibility rather than categorical rules. As Justice Kagan put it, dissenting in 2020 in Seila Law v. Consumer Financial Protection Bureau, “[d]iverse problems of government demand diverse solutions. They call for varied measures and mixtures of democratic accountability and technical expertise, energy and efficiency. Sometimes, the arguments push toward

tight presidential control of agencies. . . . At other times, the arguments favor greater independence from presidential involvement.”¹²

Justice Kagan’s point dovetails nicely with another major scholarly critique of UE theory’s formalistic accountability. That is, formal accountability is consistent neither with the ordinary meaning of accountability nor with the conception of it embodied in the Constitution’s structure. Elsewhere, I have summarized some of the major literature on these points as follows:

[Unity’s] vision of accountability is inconsistent with the far more complex [scheme] envisioned by the Constitution, [which] creates a web of accountability shared by multiple legislators representing multiple constituencies and by the presidency alike. Furthermore, constitutional accountability mechanisms are not directed solely toward vindicating majority policy preferences . . . but also toward guarding against abuse, incompetence, and majoritarian tyranny. In the context of the administrative state . . . constitutional accountability values demand not only multiple avenues for political accountability, but also intra-bureaucratic accountability mechanisms characterized by “complex chains of authority and expertise.”¹³

I have built on these insights in my own work by focusing on the role that transparency plays in fostering meaningful, or substantive, accountability.¹⁴ Even if our only goal were electoral responsiveness, that goal cannot be realized without popular access to information about government and an electorate capable of assessing it. Unfettered presidential control of the administrative state enables presidents to frustrate these ends by stifling or manipulating politically inconvenient information ranging from misconduct investigations to economic or scientific analyses that might cast doubt on administration priorities. The problem is yet more apparent when one considers the array of accountability mechanisms beyond the franchise, all of which require a reliable flow of information and analyses.

As for government speech doctrine, a key critique of the accountability rationale is that it assumes a level of authorship transparency that is not necessarily present in state-created or state-disseminated speech. As Helen Norton writes, “government speech is most valuable and least dangerous when members of the public can identify the government as its source. If, on the other hand, the expression’s government source is obscured . . . then political accountability provides no meaningful safeguard.”¹⁵ Although the Supreme Court has said that it might weigh public perception among other factors to determine whether speech is private or public,¹⁶ the Court has developed no “reliable method” to gauge it.¹⁷ To make matters worse, the other factors that the Court considers—such as the extent of government control over speech—can themselves undermine accountability if they are not accompanied by authorship transparency.¹⁸

A closely related problem can occur, even where there is no doubt that the speech at issue is produced or disseminated by the government, if that speech is falsely presented as a product of expertise or evidence-based fact-finding rather than political pressure. As with UE theory, the problem is politicized knowledge production. Elsewhere, I have referred to this phenomenon as “distortion.”¹⁹

Distortion occurs when the government—whether through employment or subsidies—sponsors the creation or dissemination of speech but imposes conditions that distort the nature of the speech or its production.²⁰ In the context of government speech doctrine, the conditions would typically be imposed on the receipt of subsidies or on continued employment. In the unitary executive context, the means of enforcing conditions can vary and will depend partly on how aggressively UE theory is interpreted. At minimum, enforcement can entail actual or threatened removal from office. Recently, I illustrated the phenomenon of distortion as follows:

Take the example of a climate scientist who works for NASA and contributes to publicly issued reports and testimony that purport to detail scientific findings. Presumably, it is no secret that the scientist works for a government agency and is paid with public funds. Yet an accountability concern remains insofar as the public can be expected to assume that the scientist’s contributions to public reporting are based on professional judgment and scientific best practices. Were those contributions instead shaped by political directives, the public would effectively be duped through distortion that cloaks political messaging in the vestments of science.²¹

Distortion can have both near-term and very far-reaching impacts on substantive accountability. To be sure, the line between short- and long-term consequences is a fuzzy one. For example, suppose that political appointees pressured civil servant scientists in an agency to bury or skew research findings that cast doubt on the feasibility of a presidential initiative. In the short run, such intimidation might prevent the public from hearing the unvarnished views of scientists on an electorally salient matter. In the longer run, the pressure campaign—particularly if it were not an isolated incident—might drive highly qualified scientists from the affected agency and deter others from serving in the first place. Such churn, along with the atmosphere that precipitated it, could impact public access to good-faith products of scientific expertise. Still more perniciously, it might undermine the capacity of the public to distinguish expertise from unfounded assertion.

Nonetheless, rough distinctions can be drawn between actions that undermine accountability in the near term and those that do so over time. Indeed, the preceding example suggests an intuitive place to draw a line: between acts or policies designed to keep discrete pieces of information or analysis from reaching the public, and those designed to politicize public knowledge-producing institutions from the inside. This distinction loosely parallels one made by political scientist Terry Moe between two techniques through which presidents wield control over the administrative state: centralization, whereby presidents institutionalize top-down White House control over agencies, and politicization, whereby presidents seek to shape

agencies through appointment and removal powers so that they are politically in tune with the White House in the first place.²²

In pointing to both short- and long-term impacts to accountability, I mean to highlight the depth of the threat that government speech doctrine and UE theory pose to substantive accountability. From a short-term perspective, even if a knowledge institution were to remain fundamentally unchanged by political interference, the partisan manipulation of discrete pieces of data or expert analyses can distort the very picture of reality against which the electorate votes. In the longer run, the impact is yet more serious and harder to reverse, as politicization permeates state-funded enterprises purportedly devoted to disciplinary and professional expertise.

II. Major Judicial Precedent (and a Glimpse at Executive Branch Precedent)

A. Government Speech Doctrine

In this Section, I review the major Supreme Court cases on government speech doctrine, emphasizing their relationships to accountability. The Court has developed the doctrine over the past few decades. Its premise is largely uncontroversial: “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”²³ For example, as Justice Rehnquist wrote in 1991’s Rust v. Sullivan, “[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, . . . it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.”²⁴ Similarly, Justice Breyer, writing for the majority in Shurtleff v. Boston in 2022, posited that “Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”²⁵

Despite the commonsense idea at the doctrine’s core—and the intuitive appeal of examples like those invoked by Rehnquist and Breyer—the doctrine’s scope is heavily contested. Two categories of cases raise especially tough questions. The first entails restrictions that fall on speech that can plausibly be characterized as private, rather than governmental speech. For example, the Supreme Court held in Walker v. Texas Division, Sons of Confederate Veterans that specialty license plates in Texas, even those designed by private groups to reflect private hobbies and interests, constitute government speech.²⁶ Dissenting on behalf of himself and three other justices, Justice Alito lamented the Court’s “capacious understanding of government speech” that “threatens private speech that government finds displeasing.”²⁷ Sounding a similar alarm, Mary-Rose Papandrea wrote that Walker put “the Court’s growing deference to government institutional actors . . . on steroids, allowing the government to disfavor private speech in the name of protecting its image.”²⁸

The second category, and the one on which I focus in this essay, arises when government purports to subsidize speech that reflects evidence-based reasoning or that otherwise is governed by professional or disciplinary norms, but conditions its support on terms that would distort the nature of the undertaking. Distortion would occur, for example, if the government were to hire investigators to probe alleged wrongdoing or climate scientists to undertake research and report their findings while pressuring them to bury politically unwelcome results.

Distortion undermines free speech values in the same way that it undermines accountability: in the short term, it uses subsidized speakers to launder political messaging and present it as professional or disciplinary expertise; in the long run, it degrades the public’s capacity to consume and process information necessary to oversee their government.

The distorting potential of government speech doctrine is as old as the doctrine itself. Indeed, commentators most often trace the doctrine’s origins to Rust v. Sullivan, a case that itself raises the specter of distortion. In Rust, the Supreme Court upheld federal regulations barring family planning clinics from mentioning abortion in the course of providing federally subsidized counseling.²⁹ Although the Rust Court did not invoke the concept of government speech explicitly,³⁰ the Supreme Court described Rust in these terms just a few years later, in Rosenberger v. Rector and Visitors of the University of Virginia.³¹ The Rosenberger Court characterized Rust as grounded in the notion that “when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.”³² Rust’s critics have argued that the challenged conditions forced medical providers to choose between funding and professional and ethical norms; in short, that the conditions distorted the funded healthcare.³³

Fifteen years after Rust, the Supreme Court decided the government speech case that is most conducive to distortion: Garcetti v. Ceballos.³⁴ Garcetti established that public employees receive no First Amendment protection against termination or other job-related penalties for speech that they convey while doing their jobs. Garcetti relies at least partly on a government speech rationale, characterizing public employee work product speech as speech that “the employer itself has commissioned or created.”³⁵ The assumption that government employees invariably convey a government-crafted message when they speak runs headlong into distortion concerns in the many cases in which employees are hired to provide professional judgment and expertise.

The Supreme Court regularly parries concerns about abuses of the doctrine by invoking political accountability. In Shurtleff v. City of Boston, for example, the Court reiterated its view that “[t]he Constitution . . . relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.”³⁶ In Walker, the Court similarly argued that “the democratic electoral process . . . provides a check on government speech,” and added that such speech itself is an expression of voters’ wishes: “members of the public . . . influence the choices of a government that, through words and deeds, will reflect its electoral mandate.”³⁷

The Garcetti Court also suggested that electoral accountability will yield legislation to protect public employee speech that is in the public interest. Writing for the Garcetti majority, Justice Kennedy cited the existence of a “powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing.”³⁸ This reasoning is similar to that invoked by the Court in 1983’s Bush v. Lucas.³⁹ The Lucas Court held that most First Amendment damages claims brought by federal employees against their employers are precluded by federal statutory civil service protection laws,⁴⁰ even as the Court “assumed, arguendo, that the [statutory] remedies . . . were not ‘as effective as an individual damages remedy.’ ”⁴¹ The Court reasoned that Congress has ample incentive to protect public employee speech, particularly whistleblowing, given Congress’s “special interest in informing itself about the efficiency and morale of the Executive Branch.”⁴²

B. Unitary Executive Theory

At first blush, UE theory has little in common with government speech doctrine; the former is an argument about government structure—specifically, the separation of powers—and pertains only to the federal government. Unity’s core assertion is that the president must control all discretionary activity in the federal executive branch, at minimum by having the power to remove anyone whose job entails such activity. The theory is grounded partly in interpretations of Article II’s text and history.

Yet UE theory shares important features with government speech doctrine. Most importantly, unity threatens substantive accountability even as its proponents justify it largely by reference to formal accountability. As with government speech doctrine, distortion is the main means by which UE theory can undermine substantive accountability.

A 1988 memorandum opinion by the Justice Department’s Office of Legal Counsel (“OLC”) illustrates how UE theory can enable political control of ostensibly non-political, even highly technical, communications.⁴³ In that memo, the OLC took the position that Congress could not constitutionally require the Director of the Centers for Disease Control (“CDC”) to mail “AIDS information fliers” to the public “without necessary clearance” by the president.⁴⁴ “It matters not at all,” the OLC asserted, “that the information in the AIDS fliers may be highly scientific in nature. The president’s supervisory authority encompasses all of the activities of his executive branch subordinates, whether those activities be technical or non-technical in nature.”⁴⁵ The OLC further stressed the categorical nature of the president’s authority by quoting a 1982 OLC opinion to the effect that the president’s “ultimate control over subordinate officials . . . includes the right to supervise and review [their] work . . . including reports issued either to the public or to Congress.”⁴⁶

As we have seen, unity’s proponents deem it essential to preserve accountability,⁴⁷ despite its negative effects on substantive accountability. Recall the major features of the accountability-based argument for unity. First, proponents observe that the president is the only elected member of the federal executive branch and contrast him with unelected bureaucrats.⁴⁸ They also deem him more politically accountable than members of Congress, given his high visibility and the fact that he alone is subject to election by the entire nation through the Electoral College.⁴⁹ As such, it is only when the president “controls all law execution in the United States [that] the national electorate has a clear object of blame or reward for such activity.”⁵⁰

The accountability rationale for unity is not extolled only by sympathetic scholars and executive branch lawyers. It has also been central to unity-friendly judicial precedent since the 1926 case of Myers v. United States.⁵¹ In Myers, the Court invalidated legislation that required the president to obtain Senate approval before removing a postmaster whom the president had appointed with the Senate’s advice and consent.⁵² Fittingly, the Court’s opinion was written by Chief Justice Taft, the only Justice in history to have previously served as U.S. President.⁵³ Much of Taft’s analysis centered on the so-called “Decision of 1789,”⁵⁴ a lengthy debate in the First Congress on the president’s power to remove officers.⁵⁵ Taft characterized the Decision partly as a referendum on the accountability rationale. Quoting James Madison in the 1789 Debate, Taft wrote:

If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved: the lowest officers, the middle grade, and the highest will depend, as they ought, on the President, and the President on the community.⁵⁶

Taft also stressed the relative depth of presidential accountability: “the President, elected by all the people, is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not country wide.”⁵⁷

More than seven decades would pass before unity arguments would again be received so enthusiastically by the Supreme Court. In the interim, the Court decided a series of cases in which it upheld statutory restrictions on removal, distinguishing each from the provision reviewed in Myers and thus effectively narrowing Myers’ reach.⁵⁸ In Humphrey’s Executor v. United States, decided just nine years after Myers, the Court deemed Myers’ holding limited to “purely executive officers.”⁵⁹ In two 1980s cases—Bowsher v. Synar⁶⁰ and Morrison v. Olsen⁶¹—the Court characterized Myers as a directive against Congress reserving the removal power for itself; Myers did not categorically bar other limits, such as for-cause requirements, on the president’s power to remove even purely executive officers.⁶² Chief Justice Rehnquist, writing for the Morrison Court, explained that the validity of a removal restriction turns on a flexible, functional question: whether the restriction is “of such a nature that [it impedes] the President’s ability to perform his constitutional duty.”⁶³

As the lone dissenter in Morrison, Justice Scalia penned an opinion that has since become a classic in the UE theory canon and that presaged the Roberts Court’s warm embrace of unity.⁶⁴ Among other things, Scalia invoked accountability.⁶⁵ The president, he observed, “is directly dependent on the people.” Indeed, the Constitution’s founders touted the relative accountability of a single president as opposed to a multi-member body: “since there is only one President . . . [t]he people know whom to blame” when something goes awry.⁶⁶ In the case of prosecutors, an unfettered presidential removal power ensures that “when crimes are not investigated and prosecuted fairly . . . the President pays the cost in political damage to his administration.”⁶⁷

Beginning in 2010, the Roberts Court retreated from the functional approach that the Supreme Court had embraced for most of the twentieth century.⁶⁸ As of now, the Court has not explicitly overruled Humphreys Executor, Bowsher, or Morrison. It has, however, reframed them, suggesting that they stand only for discrete “exceptions to the President’s unrestricted removal power.”⁶⁹ Accordingly, the Roberts Court has struck down several statutes imposing limits on this power, including a law that permitted the president to remove the director of the Consumer Financial Protection Bureau only for “inefficiency, neglect of duty, or malfeasance in office.”⁷⁰

Like the Taft Court, the Roberts Court identifies accountability as a central reason why the Constitution demands a unitary executive. Indeed, in every case in which it has rejected presidential removal restrictions, the Roberts Court has followed Taft’s lead by quoting James Madison’s 1789 statement that “the lowest officers, the middle grade, and the highest,” ought to depend “on the President, and the President on the community.”⁷¹

To be sure, unity’s proponents do not rely solely on accountability; they also invoke arguments from constitutional history and text. Elsewhere, I have recounted and built on some of the major rejoinders to these text and history-based arguments.⁷² Although my focus in this Essay is on accountability, it is worth noting that unity’s text and history-based arguments—and their failings—are themselves intertwined with unity’s enervated vision of accountability. This is true, for example, of unity proponents’ over-reading of founding-era arguments linking constitutional and statutory provisions to accountability. Proponents tend to leap from highly case-specific founding era arguments to a broad, acontextual constitutional unity directive, a move enabled by their fixation on formal, rather than substantive accountability.⁷³ This phenomenon is illustrated by unity proponents’ use of the founding era decision not to append an advisory council to the president. As I explained in a previous article:

[U]nity proponents cite founding fears that the President would hide behind his council, blaming it for his own poor decisions and thus defeating accountability. From this, unity proponents leap to the conclusion that the founders wanted the President to fully control all discretionary executive decisions and executive officers. Yet this conclusion massively oversimplifies the nature of the council debate. Council opponents focused on features specific to the proposed council, including its small size and its ability to collude with the President in relative secrecy. Notably, they also feared that the President and his council would seek to appoint executive branch officers who “possess[ed] the necessary insignificance and pliancy to render them the obsequious instruments of [the President’s] pleasure.” At minimum, the council debate, centering as it did on the specific features of the proposed council, simply did not address whether the executive branch must in all respects be unitary. If anything, the accountability-related concerns articulated in the debate suggest that the founders feared full presidential control over executive branch decision making and officers. Unfettered control could, among other things, foster secretive collusions between the President and those in his thrall.⁷⁴

III. Contemporary Threats to Substantive Accountability

In Part III, I present three sets of examples that span the period from the post-Watergate years to the earliest days of the second Trump Administration. In Section III.A, I look at the development of UE theory in the Department of Justice (“DOJ”) during the late 1970s and 1980s and its use by the Department to resist post-Watergate ethics and oversight measures. I observe that Donald Trump has picked up this mantle in more recent years, including through his resistance to oversight by Inspectors General. In Section III.B, I look at the impact of both unity and government speech doctrine on the civil service more broadly. In Section III.B.1, I discuss the relationship between the federal civil service and UE theory. I focus especially on “Schedule F,” newly reinstated through executive order on the first day of the second Trump Administration and aimed at replacing vast swaths of the civil service with political appointees. In Section III.B.2, I summarize two key reasons, including Garcetti’s impact, for the enervated state of first amendment protections for federal civil servants. In Section III.B.3, I cite several examples—including a recent spate of state laws regulating the classroom speech of public school teachers and professors—of government speech doctrine’s effect on state and local employees.

A. Unitary Executive Theory and Federal Investigations

Investigations that could implicate the president or his allies are classic locations for dispute over the constitutionality and wisdom of restrictions on the president’s ability to fire personnel or interfere with their work. Morrison v. Olson itself involved a challenge to the independent counsel provisions of the 1978 Ethics in Government Act. Enacted in the wake of Watergate, the Act was an effort to confront public corruption, in part by creating an independent counsel (“IC”) with some degree of distance from presidential control. The Act’s IC provisions were responsive to fears that presidents would, as Richard Nixon had done, interfere with Justice Department investigations in which they could be implicated. Olson challenged these provisions partly on the basis that the IC was incompatible with a unitary executive because the IC did not serve at the president’s pleasure. Instead, the IC could be terminated only by the Attorney General (“AG”), who herself is subject to at-will dismissal by the president. The AG could fire the IC “only for good cause, physical or mental disability . . . or any other condition that substantially impairs [the IC’s] performance of . . . [their] duties.”⁷⁵

The majority and dissenting opinions in Morrison reflected two very different ideas about unity and accountability. To the majority, written by Justice Rehnquist, the judicial mission was limited and functional: its role was not “to define rigid categories”⁷⁶ but to ensure that legislation does not “interfere impermissibly with [the president’s] constitutional obligation to ensure the faithful execution of the laws.”⁷⁷ Among the factors that Rehnquist cited to explain why the removal restriction passed this practical assessment, it “was essential, in the view of Congress, to establish the necessary independence of the office,” an office that could be tasked with investigating the president or close advisors.⁷⁸ To Justice Scalia, the lone dissenter, the president possessed all the executive power—a conclusion that he reached by interpreting Article II’s opening words, “[t]he executive Power shall be vested in a President of the United States,” to mean “all of the executive power”—and such power necessarily entails complete and indefeasible removal authority.⁷⁹ As for the risk that the president might abuse this power, Justice Scalia answered that “the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect.”⁸⁰ Justice Scalia’s vision of accountability was so narrow that he treated the IC provisions, enacted by elected members of Congress and subject to presidential veto, as constitutionally intolerable because they might subject the president and their advisers to popular scrutiny. The provisions, Scalia said, “weaken[] the Presidency by reducing the zeal of his staff” and “enfeeble[] him more directly in his constant confrontations with Congress, by eroding his public support.”⁸¹

Although functionalism—and substantive accountability—prevailed over formalism in Morrison, Justice Scalia’s views would eventually receive a much warmer reception in the Roberts Court. Within the executive branch, unitary executive theorists did not need to wait nearly so long to see their ideas put into practice. The Justice Department in the Reagan Administration was deeply entwined with the conservative legal movement,⁸² and both the Department and the broader movement made the advancement of UE theory a priority.⁸³ Conservative legal elites viewed unity as one means of reigning in the perceived liberalism of the administrative state, and were also drawn to it because Republicans at the time had better electoral chances with the presidency than in either house of Congress.⁸⁴

Much of the pro-unity activity in the Reagan-era Justice Department was directed against post-Watergate legislation that imposed oversight measures on executive branch lawyers. Recounting these efforts, Deborah Pearlstein writes:

[T]he first sustained campaigns to apply unitary executive theory to the day-to-day workings of government began within the Department of Justice, and some of the most important battles focused on just [the] claim . . . that an appropriate understanding of the executive power required recognizing constitutional limits on the ability of Congress and the federal courts to engage in professional oversight of Justice Department lawyers. On some occasions quite visibly, on others largely in secret, movement lawyers deployed unitary executive arguments to challenge or block three of the major tools that post-Watergate reformers had pursued to ensure government attorneys would worry more about being held accountable for their misconduct: (1) strengthened rules of professional ethics; (2) an Office of Professional Responsibility inside the Department of Justice to investigate ethics complaints against government attorneys; and (3) independent inspectors general to investigate allegations that government officials were responsible for waste, fraud, or abuse.⁸⁵

Unity proponents also made their cases—for UE theory generally and against independent oversight of federal officials in particular—to the practicing bar, to legal academics, and to law students.⁸⁶ These efforts contributed to unity’s eventual reversal of fortune in the courts. They also helped to shift the norms of acceptable conduct among government officials, both because they “weakened internal ethics checks” and created a permission structure for ethical breaches.⁸⁷ Indeed, the repeated refrain that oversight legislation weakens the president and affronts voters lends itself to arguments that even highly credible and serious misconduct allegations are mere “partisan attack[s].”⁸⁸

Although UE theory has a decided partisan valence historically, its allure as a means to push back against oversight has not been lost on Democrats when they occupy the oval office. Although the DOJ Inspector General—against which movement lawyers fought—was not established until 1988,⁸⁹ the initial Inspectors General Act was enacted in 1978, and then-President Jimmy Carter’s OLC objected to two aspects of the law as inconsistent with unitary presidential control of subordinates.⁹⁰ John Harmon, Carter’s Acting Assistant AG for the OLC, objected in a memorandum to the Act’s removal provision, which gave the president at-will removal power over Inspectors General (“IGs”) but required them to notify both Houses of Congress of their reasons for removal. Citing Myers, Harmon called this an “improper restriction on the President’s exclusive power to remove Presidentially appointed executive officers.”⁹¹ Harmon also objected to the IG’s statutory “obligation to keep Congress fully and currently informed” and the related “requirement that [the IG] provide any additional information or documents requested by Congress . . . without executive branch clearance or approval.”⁹² In Harmon’s view, these informing rules interfere with the president’s “general administrative control over those executing the laws,” which “includes the right to coordinate and supervise all replies and comments from the executive branch to Congress.”⁹³

Finally, and unsurprisingly, Donald Trump has been especially brazen in resisting accountability measures and in invoking unity to do so. Examples to this effect include his dismissals of Inspectors General during his first administration and in the first week of his second administration. During his first administration, Trump notoriously fired several Inspectors General who investigated controversies ranging from the administration’s handling of the Covid-19 pandemic to the call between Trump and the Ukrainian president that led to Trump’s first impeachment.⁹⁴ Trump made clear his view that UE theory empowered him to take such actions.⁹⁵ As of this writing, less than one week into Trump’s second administration, he has already fired more than a dozen Inspectors General in the course of a single Friday evening. The firings eschewed the applicable statutory requirement that Congress receive thirty days’ notice of any removal including a “substantive rationale” with “detailed and case-specific reasons” for removal.⁹⁶

B. Broader Attacks on the Civil Service: UE Theory and Government Speech Doctrine at Work

Unitary Executive Theory

UE theory also threatens the federal civil service on the whole, including disciplinary experts such as scientists, economists, and public health researchers. Unity can undermine their ability to disseminate competent, good-faith information and analyses that an administration finds politically inconvenient. Such impacts have both short-term and long-term aspects. In the short term, presidents and their political subordinates may invoke unity to block or manipulate certain communications. In the longer run, they may nip such communications in the bud more seamlessly by thinning out the merit-based civil service in favor of a largely political workforce.

As for short-term impacts, there are two major categories of valuable civil service communications at risk. The first is whistleblowing regarding wrongdoing in federal agencies. Currently, civil service laws protect federal employees who blow the whistle on bad acts including illegality, waste, and abuse.⁹⁷ These protections would be compromised should an administration assert, and even more so should courts agree, that such legislation cannot constitutionally prevent the president from removing, at will, anyone who exercises discretionary executive power. As I elaborate in Part IV, it is by no means a foregone conclusion that courts would allow presidents to bypass civil service protections on unitary executive grounds. It is possible, however, that courts would indeed extend the logic of the Roberts Court removal cases so far. Courts might also draw to the same effect on the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission in which the Court expanded the definition of “officers” who constitutionally cannot be part of the civil service.⁹⁸

UE theory can also be invoked to stifle civil servants who seek to convey information or analysis in the ordinary course of doing their jobs. Recall, for example, the OLC’s 1988 opinion to the effect that Congress may not require executive branch personnel to distribute even highly technical information without a chance for presidential intervention.⁹⁹ Furthermore, to the extent that some such speech falls within the terms of federal whistleblower protection laws,¹⁰⁰ it is vulnerable to the same unity-based threats as that faced by federal whistleblowers more broadly.

Unity can enable much more than the blocking of isolated pieces of information and analysis. It can have a deep, long-range impact by thinning out the ranks of the civil service, enabling the president to fill and potentially fire large swaths of the federal workforce previously designated as nonpartisan merit hires. As noted, it is by no means inevitable that courts would sign off on such sweeping changes. Existing case law does, however, open the door to such a possibility, and at minimum, it can embolden presidents to test the boundaries of precedent by trying to initiate such action.

Donald Trump seems determined to push the limits of a president’s power to politicize the federal workforce. On the first day of his new administration, January 20, 2025, he issued an executive order (“EO”) reinstating the so-called “Schedule F” order that he had issued in the waning days of his first administration.¹⁰¹ The EO authorizes the transition of potentially tens of thousands of career positions throughout the federal workforce into political appointments.¹⁰² In its purpose section and even its title, the EO projects confidence that it is permitted, even demanded, by unity and accountability.¹⁰³ The EO is entitled “Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce,” and it asserts that the president has “sole and exclusive authority over the executive branch.” It adds that any power held by federal employees “is delegated by the President,” and that employees “must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people.”¹⁰⁴ Fittingly, the idea behind Schedule F during Trump’s first administration originated in a memorandum suggesting that Trump “[e]xplore the ‘Constitutional Option’ for firing federal employees,”¹⁰⁵ and that civil service protections might be unconstitutional.¹⁰⁶

There is also an obvious kinship between the EO’s reliance on the notion of presidential accountability and Trump’s longstanding rhetoric about the abuses of the so-called “deep state.”¹⁰⁷ As Donald Moynihan writes, “Trump was not just antagonistic toward the career public service: this hostility was central to his political identity. He had openly campaigned against the ‘deep state.’ ”¹⁰⁸ The EO’s own language frames it as a reaction to “numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership,” and as a “restor[ation of] accountability to the career civil service.”¹⁰⁹

Federal Employees and the First Amendment

Federal civil service laws are especially crucial to protect accountability-enhancing speech because federal employees lack robust First Amendment protections. On the rare occasions that an employee’s free speech lawsuit proceeds to the merits, it confronts the Garcetti hurdle. Should a court conclude that the employee’s speech either occurred outside of the course of their employment or warrants an exception from Garcetti, the employee still must overcome a balancing test that defers substantially to employers’ rationales.¹¹⁰

As noted earlier, the reason why federal employees are rarely able to invoke the First Amendment to sue their employers directly is because the Supreme Court held in 1983’s Bush v. Lucas¹¹¹ that the federal civil service laws preclude such suits.¹¹² The Lucas Court expressed confidence that Congress would protect whistleblowers.¹¹³ It did not, apparently, anticipate a future in which whistleblower protection laws might themselves be overtaken by aggressive interpretations of UE theory. Even on their own terms, such laws have not reliably served as the “powerful network” that the Garcetti Court assured would protect whistleblowers in lieu of robust first amendment protections.¹¹⁴ For example, at the time that the Court decided Garcetti, federal whistleblower protection law contained the same hole that

Garcetti created in constitutional coverage—namely, it did not encompass speech made as part of one’s job.¹¹⁵

The First Amendment and State and Local Employees

Although state and local employees can invoke their First Amendment rights directly, those rights have been narrowed considerably by courts, particularly through the government speech doctrine and Garcetti. Furthermore, as we have seen, the notion underlying a broad government speech doctrine—that public employee speech is rightly, even necessarily subject to political control—also has substantial political currency. That political appeal—coupled with legislators and executive officers feeling emboldened by the state of the case law—have helped give rise to a number of restrictive policies, ranging from sweeping public employee gag rules to legislation micro-managing the classroom speech of public school teachers. In this Section, I discuss three examples of such measures: post-hoc discipline for employee speech, prior restraints on employee communications with the media, and laws targeting public school educators in particular.

First, Garcetti and some lower court interpretations of it negatively impact substantive accountability by opening the door to retaliation for two categories of speech: employee reports of wrongdoing and employee communications on matters of public interest in the course of doing their jobs. The latter requires little explanation, as Garcetti explicitly permits discipline for speech that constitutes work product, however truthfully and competently performed. The former also follows plainly from Garcetti to the extent that catching and reporting on internal wrongdoing is a part of one’s job. Furthermore, although lower court interpretations of Garcetti are not monolithic, some define job duty speech broadly enough to capture a good deal of such whistleblowing. For example, some courts treat the fact that an employee reported wrongdoing through their “chain of command,” or through some other avenue that lacks a “civilian analogue,” as evidence that the report fell within their job duties.¹¹⁶ Some courts accord the same meaning to the fact that an employee’s speech is directed toward resolving problems that interfere with their duties.¹¹⁷ Furthermore, despite contrary language in a 2014 Supreme Court case,¹¹⁸ some lower courts have treated the fact that an employee learned about information on the job as a factor that weighs against First Amendment coverage should they face discipline for communicating it.¹¹⁹

Second, although there is a sound basis to conclude that Garcetti does not license agencies to impose sweeping prior restraints on employee speech,¹²⁰ and some courts indeed have struck down such policies,¹²¹ there remain scores of federal, state, and local directives that bar employees across multiple agencies from speaking to reporters without authorization. A 2019 report by the Brechner Center for Freedom of Information at the University of Florida found “dozens of examples of policies that either forbid government employees from speaking to journalists at all, or require that they obtain a supervisor’s permission before doing so.”¹²² Such policies persist in part because “Garcetti fueled a mindset among government managers and their counsel that the courts would view restrictions on employee speech deferentially.”¹²³ The political currency of the notion underlying Garcetti and government speech doctrine more broadly—that agency employees can be made to speak in one voice, dictated by political leadership—plays an important role as well.

Third, over the past several years, public school teachers—college and university professors as well as K–12 instructors—have faced a host of state laws barring them from conveying certain ideas about race or gender in the classroom.¹²⁴ State and public school board defendants have leaned heavily on the government speech doctrine to justify the laws. To defend its restrictions on the instructional speech of public college professors, for example, the state of Florida asserted that the First Amendment “categorically does not apply” because such communications constitute “heartland government speech.”¹²⁵ Defendants have also invoked accountability to bolster their government speech arguments. In the Florida litigation, for example, the state argued that anyone displeased with the restrictions on professorial speech could seek recourse “[at] the ballot box.”¹²⁶ The laws’ proponents similarly invoke political accountability in their appeals to the public. For example, Nate Hochman, writing in the Manhattan Institute’s City Journal, characterized critics as “suggest[ing] that public educators should be insulated from accountability and democratic oversight.”¹²⁷ Judicial responses to lawsuits challenging such restrictions have been mixed thus far. In cases involving college and university professors, courts have sided with plaintiffs, identifying an academic freedom exception to Garcetti that I discuss further in Part IV.¹²⁸ Courts have been less favorable to plaintiffs in the K–12 educational setting, concluding that primary and secondary school teachers are subject to Garcetti’s rule.¹²⁹ In the latter cases, however, plaintiffs have had some success in arguing that the laws are too vague to pass constitutional muster.¹³⁰

IV. Some Kernels of Hope

Although both UE theory and government speech doctrine have made substantial strides in the courts and the political branches, they are not invulnerable to limiting principles. Indeed, courts already have imposed or laid the groundwork for some boundaries on each doctrine’s reach. These aspects of precedent can, and should, be built on with substantive accountability among the lodestars in the process. I have explored these points in more detail elsewhere,¹³¹ and highlight a few aspects here.

Turning first to UE theory, there are a few respects in which the current case law leaves the door open for some substantive accountability-based limits. For example, the Supreme Court has not, as of yet, weighed in on the constitutionality of civil service protections. Indeed, Chief Justice John Roberts, writing for the Court in a 2010 case, noted that “[n]othing in [its] opinion . . . should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.”¹³² Roberts observed that many civil servants “would not qualify as ‘Officers of the United States’ who ‘exercise significant authority pursuant to the laws of the United States;’ ” accordingly, they may not “be subject to the same sort of [presidential] control.”¹³³ In a future case, the Court could decide the question that it has left open and affirm the constitutionality validity of civil service tenure protections. To its reasoning about the limited scope of civil servants’ roles, the Court might add one about the work that they do perform. Namely, much of it entails the production of knowledge that reflects expertise and evidence-based analysis—for example, generating scientific reports or undertaking audits or inspections. Such work creates much of the factual backdrop against which the public and other branches can judge elected officials. By guarding against political interference with knowledge production, civil service protections support substantive accountability.

Similar substantive-accountability based arguments can be made regarding other questions that the Supreme Court has not, to date, decided. This includes the constitutionality of the limited removal restrictions that currently apply to IGs and of the still more ambitious proposals to provide IGs with for-cause protection from removal.¹³⁴

As for government speech doctrine, the case law contains the seeds of an important limiting principle that I call the anti-distortion doctrine. It amounts to a wariness of conditions on state-sponsored knowledge production that would distort the nature of the sponsored programs or their communicative outputs. Perhaps the most overt use of the principle occurs in the 2001 case of Legal Services v. Velazquez.¹³⁵ The Velazquez Court invalidated a law restricting the types of arguments that congressionally funded legal services attorneys could make in litigation.¹³⁶ The Court observed that Congress had funded the attorneys not to transmit government speech but rather to represent private clients.¹³⁷ Having done so, Congress could not limit the stock of arguments from which the attorneys could draw to advise and to advocate for their clients. Such a limit, said the Court, “distorts the legal system by altering the traditional role of the attorneys” as zealous advocates for their clients.¹³⁸ Among the problems with such distortion is that it “prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.”¹³⁹

Garcetti itself contains some anti-distortion reasoning. The Garcetti Court left open the possibility of an exception for the expressive work of public school academics to the general rule that work product speech is unprotected. The Garcetti Court acknowledged that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”¹⁴⁰ An academic freedom exception is necessarily grounded in an anti-distortion principle, specifically in the notion that the state may not create or fund an institution of a type ordinarily characterized by academic freedom but then curtail that freedom.

CONCLUSION

The doctrines explored here undermine substantive accountability in the name of accountability. Those attempting to limit the reach of UE theory and government speech doctrine, whether in the courts, the political branches, or the realm of public debate, must understand that their appeal lies partly in their proponents’ insistence that the doctrines do not undercut accountability but in fact protect accountability. Highlighting the errors of that claim and the danger that the doctrines pose is one small but necessary step in any efforts to staunch their forward march.

98 S. Cal. L. Rev. 1321

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Heidi Kitrosser*

* William W. Gurley Professor, Northwestern University – Pritzker School of Law. I am very grateful to Erin Miller for inviting me to participate in the symposium for which I wrote this article, to Christina Koningisor for her wonderful turn as discussant for this piece, and to the student editors of the Southern California Law Review for their terrific work in organizing the symposium and editing this piece. I owe many thanks as well to Ronnell Anderson Jones and her colloquium students at the University of Utah Law School and to the faculty at the University of North Carolina Law School for inviting me to present this paper and for their thoughtful questions and comments.

The First Amendment of Fear

September 2025September 2025Nelson Tebbe*

Introduction

Fear can be a powerful silencer. Speakers may be thwarted not only by direct force but also when they check themselves because they anticipate adverse consequences. Some assessment of costs and benefits is involved whenever anyone decides to communicate, of course. That is normal and actually valuable. Yet acute anxiety, caused by the realistic prospect of violence or other grave harm, differs from ordinary consequential reasoning, even if both result in silence.

Today, speakers seem to be hesitating with concerning frequency. Their reticence is understandable, because disagreement and its consequences have become severe in certain settings. Acute fear of speaking has affected those on the right and on the left, though not perhaps in the same way or to the same degree. Consider an example at Columbia University. Reportedly, a truck with a billboard bearing the words “Columbia’s Leading Antisemites,” alongside the names and faces of students and faculty, appeared in Morningside Heights and drove slowly around campus.¹ The truck targeted Columbia affiliates who allegedly had signed a statement of solidarity with Palestinians in Gaza. The stunt was reported to be a project of a conservative media group, which also published a website that listed students and faculty members and was updated regularly.² People named on the website were said to be members of various campus groups that were engaged in protests against Israel’s military actions. The website asked readers to send messages to Columbia’s board of trustees urging them to “take a stand” against “these hateful individuals.”³ The group also purchased domain names that corresponded to the actual names of several students and faculty on the list, and it planned to send the truck to the targets’ homes. Two Columbia law students who were named had job offers withdrawn by law firms, according to news outlets covering the story.⁴

Although debates over Israel’s military actions in Gaza are particularly fierce, they are not unique. Fear of speaking seems to have intensified as political conflict has escalated in the United States and elsewhere.⁵ As differences have deepened and political identities have tribalized, speakers noticeably have withdrawn, nervous about the possible results. Some antagonism is inherent in healthy democratic discourse, and it is not cause for regret. Criticism is a feature of deliberation, and it is valued by First Amendment traditions. But anticipation of systematic violence is something of a different order, at least arguably. Intimidation like that can degrade democratic discourse and political cooperation—or that at least is the worry with respect to freedom of expression.

Technological changes have contributed to the climate of anxiety, of course. Although some of the activity at Columbia was analog—it took the form of a truck circling campus—other aspects have leveraged the efficiency of digital media. Today, any utterance can be preserved and disseminated, instantly and cheaply. Anonymity reduces accountability for the intimidation; though anonymity also can serve freedom of expression,⁶ its possible piercing can disincentivize debate. A feeling of surveillance can result—the sense that something you say can provoke reprisal that is utterly devastating.

Although this is hard to document, the university classroom itself shows signs of being impoverished by the effects of systemic fear. On questions of political controversy, students appear reluctant to volunteer views that even conceivably could expose them to retribution or stigmatization. Faced with a choice between the exploration of ideas that entails the risk of retribution and the safety of silence, many students opt for the latter, it seems. And that is true of at least some students on the right and left.

Professor Helen Norton’s insightful essay for this symposium explores a related dynamic surrounding the law of stalking.⁷ For purposes of this Essay, what her sophisticated analysis illustrates is a more general phenomenon, namely that speech generating fear can itself have a silencing effect. Although the constitutional debate surrounding stalking manifestly concerns the expressive rights of the stalker, its latent lesson is that there are speech interests on both sides—that the victims of harassment and intimidation themselves can become muzzled.⁸ Understanding that dynamic complicates any consideration of the First Amendment of fear.

This short Essay seeks to make modest progress on understanding and approaching the relationship between extreme fear and freedom of speech. Part I draws inspiration from Judith Shklar, who famously built a liberal political theory designed to shield citizens from fear.⁹ Though her theory was concerned solely with government oppression, and though she built up only a minimal kind of political morality, it can be complicated and complemented to include private sources of intimidation and, relatedly, to comprehend a positive government obligation to ensure the basic social and material conditions for a healthy speech environment. Part II then applies this political conception to the problem of doxing. State statutes regulating doxing already exist, though they mostly have not yet been tested for adherence to the First Amendment.¹⁰ Whether and how those laws comport with the right to freedom of expression is a complicated issue, one that must include consideration of the expressive interests of the targets or victims of doxing, as well as of the perpetrators, and it must involve the social and economic power relationships that constitute and distort the expressive environment.

I. The Politics of Fear

A place to start is with perhaps the most prominent political theorist of fear, Judith Shklar. Reading her later work today is bracing—it elicits a jolt of recognition. At the most basic level, Shklar seeks to organize a conception of liberalism around a summum malum, namely “cruelty and the fear it inspires, and the very fear of fear itself.”¹¹ Cruelty of the sort that concerns her is systematic; it is not haphazard but instead it entails the “deliberate infliction of physical, and secondarily emotional, pain” as an exercise of power by those in positions of strength against those in positions of weakness.¹²

Terror and acute anxiety are bad, supremely bad, partly because they interfere with freedom, understood as the ability to direct one’s own life. Here is a key passage: “Every adult should be able to make as many effective decisions without fear or favor about as many aspects of her or his life as is compatible with the like freedom of every other adult. That belief is the original and only defensible meaning of liberalism.”¹³ She explains that liberalism aims to lift the burden of political anxiety from the shoulders of adults, who then can order their lives according to their own beliefs, wants, and needs.¹⁴

Shklar’s chain of reasoning—from basic security, to the fear of its violation, to the fear of fear itself, and then to the connection of security to the exercise of basic freedom—resonates. She connects power differentials and their abuse to human emotion, and she connects psychological security to the ability of individuals to function as citizens in a political community.¹⁵ A commitment to personal security is political insofar as it concerns a necessary condition of the community—of the project of democratic cooperation.¹⁶

For theorists of free speech, it is a short step from Shklar’s liberalism to the realization that speakers cannot be free if they are fearful of physical violence or of power exercised against them in ways that threaten their safety. Is this silencing systematic? Shklar is not simply concerned with insecurity, again, but with insecurity that issues from power differentials and is patterned. Silencing that results from fear today could possibly be considered systematic, in a sense. Or you could say that some silencing is systematic in this way. In a radically polarized political climate, the content and viewpoint that risks retribution is foreseeable—and it is precisely this predictability that creates the conditions for censorship. If speakers did not know what positions or politics would endanger themselves or their families, they would not be able to avoid them. But because such viewpoints are foreseeable, and to the extent they are, they can be silenced.

Shklar is focused on public power, which she identifies with government action.¹⁷ And her sharp distinction between public and private power is recognizably liberal.¹⁸ To some degree, Shklar’s work nevertheless remains relevant here, even strictly construed, because it applies to certain violations of freedom of expression that are instigated by government actors. In this pattern, a public official identifies a political enemy with the knowledge and expectation that followers will harass and intimidate the targeted person, terrifying them into submission and silence. So, although the proximate harm is caused by private persons, the coordination and instigation come from politicians.

Yet taking a broader view, Shklar’s focus on state action neglects instances in which private actors threaten potential speakers without any apparent or actual coordination by government figures. Because the effect is often the same, and because the topics involved may well be matters of public concern, her neglect of nonpublic exercises of power to systematically silence people limits the usefulness of her insights in today’s speech environment.

It is true that Shklar acknowledges the relevance of some social and institutional conditions for the exercise of individual freedom. For example, she emphasizes some differences between her theory and Isaiah Berlin’s negative liberty, which is otherwise quite similar. She sees the importance of protecting not just negative liberty as such, but also the conditions that make its exercise possible, and she realizes that in this way negative liberty is a necessary but not sufficient condition for personal freedom.¹⁹ “No door is open in a political order in which public and private intimidation prevail,” she says, and therefore it is important to identify the “institutional characteristics of a relatively free regime,” including mechanisms for the dispersal of power—social as well as strictly political power.²⁰

In a prominent critique, Sam Moyn portrays the liberalism of fear as an instance of what he calls Cold War liberalism. Chastened and traumatized by the wars and totalitarianisms of the twentieth century, Shklar pessimistically “dropped any radical expectations of improvement” and retreated to defending minimal pluralism against the persistent threat of violence.²¹ Abandoning the aspirations of her earlier work, Shklar adopted a “ ‘survivalist’ approach to political theory,” one resigned to hope only for “damage control.”²² This form of liberalism offered few resources to resist the rise of libertarianism and neoliberalism, though it was distinct from both.²³

We need not accept the limits of the liberalism of fear. To the degree that Shklar herself is focused solely on precarity caused by government policing, we can expand her insights and apply them to nongovernmental sources of insecurity. Political and constitutional theory can assimilate the insight that freedom of speech, like other basic liberties, cannot be merely formal but must be real for the actual human beings living in historically specific social situations.²⁴ It is essential for the meaningful exercise of freedom of speech for certain essential social and economic conditions to obtain. Some of these conditions are egalitarian, and some are sufficientarian, as argued in other work.²⁵ Here, the specific point is that speakers do not have a meaningful ability to express themselves freely if they are subject to fundamental physical and psychological insecurity. This is not just the healthy fear of avoidable pain, as Shklar emphasizes, but the systematic circumstance of political polarization and power exertion that predictably suppresses particular viewpoints.

The First Amendment of fear qualifies as a political conception because it attends to social and economic power and locates solutions, ultimately if not exclusively, in the state. Although the closest causes of anxiety today often are other citizens, leveraging digital media and other technologies of terror, they are unlikely to be stopped solely by private means. Government has an obligation to ensure people’s security, and their sense of security, as a condition of meaningful political participation as cogovernors in a democracy. Whether that obligation itself has constitutional force is an interesting but different question, and regardless government ought to be constitutionally permitted to pursue the structural conditions for real

people’s meaningful exercise of the fundamental right to freedom of expression.

Is the political commitment to freedom from fear possible to implement in law, given existing First Amendment doctrine? There is some doubt. Part II explores that question in the context of state statutes criminalizing or otherwise regulating doxing.

II. Doxing and Silencing

In the little space that is left in this Essay, let’s consider attempts by law to guard against a particular cause of fear, namely doxing. These attempts face serious challenges under the First Amendment, since doxing typically constitutes speech that does not necessarily or obviously fall within an existing category of unprotected expression, and since it is regulated based on its content.²⁶ From the perspective of the First Amendment of fear, this legal circumstance could be seen as a matter of regret, insofar as doxing itself can have a powerful silencing effect on those it targets.²⁷ There may be no way to assimilate that insight into the existing structure of free speech doctrine. Yet this Part cautiously explores one possible pathway.

Doxing can be understood in several ways. The Oxford English Dictionary defines it as “[t]he action or process of searching for and publishing private or identifying information about a particular individual on the internet, typically with malicious intent.”²⁸ At root, and colloquially, the practice involves publishing identifying information about someone in order to facilitate harm of that person by third parties. Yet not every element of this understanding is essential; arguably, the trucks that circled campuses displaying the names and images of students constituted doxing even though they did not involve the internet.²⁹ And additional elements may be necessary, such as a particular level of mens rea, or a requirement that the information not already be publicly available, or that the target is not a public official.

California has an influential criminal statute that includes a specification of what constitutes doxing. It prohibits “electronically distribut[ing]” through various means “personal identifying information” of another person “with intent to place another person in reasonable fear for his or her safety, or the safety of the other person’s immediate family” and “for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment . . . by a third party.”³⁰ Among the exceptions is the distribution of information with the target’s consent.³¹

Though the California criminal statute does not use the term doxing, it has been understood to regulate that activity. A newer state law provides a civil cause of action for “doxing,” which it defines using much the same language as the criminal provision.³² Legislative history shows that state lawmakers intended to provide a civil cause of action for doxing, referencing the criminal statute.³³ Also, Stanford University’s “Anti-Doxxing Policy” appears to be modeled on the California statutes and uses substantially the same definition of the prohibited activity.³⁴

Notable here is California’s use of the term “fear” to indicate the harm that it seeks to protect against. Apparently, the state believes that disabling anxiety on the part of victims is serious enough to warrant a criminal prohibition. And the statute recognizes that the electronic distribution of personal information has the power to generate a specific kind of harm, and to an extraordinary degree. Yet the statute also limits itself to fear of “physical contact, injury, or harassment,” not just anticipation of political criticism or even social ostracism, without more. Though there is considerable variation among state doxing statutes on this and other questions, the California approach is among the most straightforward.³⁵ Also notable is that the California statute does not exempt news reporting, perhaps because lawmakers reasoned that the intent requirement would not be satisfied and therefore an explicit exemption was unnecessary.

Could the California statute withstand a First Amendment challenge?³⁶ The difficulty, of course, is that the distribution of personal identifying information could itself be seen to be expression, or expressive conduct. And if the Speech Clause is implicated, then plausibly it requires strict scrutiny of the California statute, which regulates on the basis of content.³⁷ After all, the statute only prohibits a specific kind of speech, namely the distribution of certain identifying information using a particular medium. And whether the statute is narrowly tailored to a compelling government interest is unclear.³⁸

Under one theory, the California statute might be constitutional because it regulates a type of threat. On this approach, the regulated content would fall within a traditional category of unprotected speech. Compare California’s threat statute. It criminalizes threatening another person with “death or great bodily injury” with the specific intent that the statement be taken as a threat and under circumstances that convey a specific and immediate danger so that the target “reasonably . . . [is] in sustained fear for his or her own safety or for his or her immediate family’s safety.”³⁹ Threat statutes do typically guard against a particular kind of “fear.”⁴⁰ Conceivably, California’s doxing statute regulates a subset of threat—a specific kind of statement, made through a particular medium, that causes the target to feel insecure, particularly with regard to safety. Both statutes have an intent requirement and they both apply only to reasonable fears and imminent dangers. Neither requires the violence to eventuate because both recognize that the fear itself is harmful.

To be sure, there are differences that may be important. Crucially, the doxing statute shields against statements that risk harm not by the speaker, but by a third party. For this reason, it could be reasonably argued that incitement is the category of unprotected speech that is more closely analogous to doxing.⁴¹ But incitement does not centrally involve fear, which seems essential to the harm of doxing.

If it is correct that doxing can count as a type of threat, then its prohibition could be seen as having a kind of derivative constitutionality. Threats constitute a category of unprotected speech, under established Supreme Court doctrine.⁴² If California has criminalized a species of threat, then its doxing statute could survive under that First Amendment doctrine. Importantly, the state would have to require at least a recklessness level of mens rea to avoid chilling protected activity.⁴³ But because the doxing statute requires an “intent” and a “purpose,” it could be construed to clear that bar.⁴⁴

A possible doctrinal objection is that the Supreme Court protected an early form of doxing in NAACP v. Claiborne Hardware.⁴⁵ That decision is mainly known for its holding that a civil rights boycott of white-owned businesses was constitutionally protected.⁴⁶ Less well known is the Court’s holding that recording the names of customers who violated the boycott, reading those names at meetings, and publishing the names in a newspaper could not be punished.⁴⁷ If boycott enforcers from the NAACP intended to threaten these customers by causing them to fear that they would be identified to third parties who would harm them, then their activity of recording names looks like doxing. And the Court held that the organizers “admittedly sought to persuade others to join the boycott through social pressure and the ‘threat’ of social ostracism” but that “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.”⁴⁸ Violence did occur in the course of the boycott, but still, the Court held that publishing names of boycott violators could not be punished. This could be understood as precedent for protecting doxing.

Yet the Court also reaffirmed that both violence and the threat of violence are unprotected and could be punished.⁴⁹ What the First Amendment requires is precision, not protection of threatening speech.

When [violence or a threat] occurs in the context of constitutionally protected activity . . . ‘precision of regulation’ is demanded. Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages.⁵⁰

In the context of doxing, this may provide good reason to require an elevated level of mens rea.⁵¹ The lesson may be that while speech that identifies perceived wrongdoers cannot be punished, particularly when it addresses matters of public concern, speech that identifies individuals for the specific purpose of eliciting violence can be prohibited because criminalization with that elevated level of intent constitutes “precision of regulation.” Whether the “doxing truck” at Columbia could be criminalized under this approach would depend, in part, on whether it was operated with the requisite level of intent.

Another possible objection is that punishing only doxing that is specifically intended to elicit fear of violence, and that qualifies as a type of threat, does not match people’s common understanding of doxing. On this objection, it is undesirable for there to be a mismatch between the social meaning of a term like doxing and the legal prohibition that seeks to address the harm. That is reasonable. If the truck at Columbia were not motivated by the requisite intent, such that it did not constitute doxing as a legal matter, some would view that as a fault of the statute. One response is that not protecting against doxing at all, or doing so only through existing statutes designed for other purposes, also fails to match people’s reasonable expectation that the law should address serious harms. Another response is that many people seemingly do think that doxing involves “malicious intent” in the words of the Oxford definition, if not necessarily intent relative to violence.⁵² So maybe the mismatch is not so egregious.

Another mismatch is that the proposal here only prohibits doxing that creates a fear of violence, not also harassment.⁵³ That is because it is unclear whether a statute that guarded against fear of harassment, without more, would fall within the category of unprotected speech for true threats.⁵⁴ So here too, there is a potential mismatch between the proposal and colloquial understandings of doxing—an awkwardness that may simply be a cost of fitting this particular protection against disabling fear into the existing constitutional doctrine.

This proposal would bring the regulation of doxing within the unprotected category of threatening speech. Still, it is unfortunate that First Amendment law is being understood to require strict scrutiny of all speech regulations that fall outside a recognized category of unprotected speech, such as threats. As Genevieve Lakier and Evelyne Douek have argued, the Supreme Court has moved away from its traditional practice of evaluating speech regulations with respect to First Amendment values and competing considerations.⁵⁵ In this context, as noted, doxing regulation could serve important free speech values, especially by protecting victims against the sort of disabling hesitation that effectively silences them. So it could be said that in at least some cases there are expressive interests on both sides of a statute like California’s. A full consideration of values would take that symmetry into account.

Yet, for now, unless and until there is a meaningful change in the ideology or composition of the Roberts Court, the binary approach to speech doctrine must be taken as a fixed feature of constitutional law. And under that approach, a doxing statute like this one can best survive if it is understood to regulate a subset of threatening speech.

Conclusion

From the perspective of the First Amendment of fear, government ought to be at least permitted, if not required, to safeguard the conditions under which people have a meaningful and not just formal ability to participate in democratic discourse and otherwise express themselves freely. One obstacle to that freedom is the systematic apprehension of speaking on certain topics. Unfreedom of this kind is worth protecting against. Government has the ability and the responsibility to ensure expressive security—not freedom from fear of criticism or rebuke, but freedom from systematic fear of violence, at the very least. Arguably, this kind of safety is essential to expression. Doxing legislation may be one example of government protection that, despite facing constitutional hurdles, can be crafted so that it does more to promote than to frustrate First Amendment imperatives.

98 S. Cal. L. Rev. 1413

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Nelson Tebbe*

* Jane M.G. Foster Professor of Law, Cornell Law School. Thanks to Evelyn Douek, Eugene Volokh, participants in the Southern California Law Review symposium, and the staff of the law review for comments and suggestions. The author served as an observer for a committee of the Uniform Law Commission on doxing, but the arguments here do not reflect the views of the committee.

The Lost History of “History and Tradition”

March 2025March 2025Dov Fox* & Mary Ziegler†

The Supreme Court has decided one blockbuster after another by appealing to “history and tradition,” deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action; from narrowing the scope of public accommodations to widening the margin for church/state entanglements. The Court says that its history-and-tradition test emerged fully formed in 1997 from an assisted-suicide case that was designed to rein in the drift toward living constitutionalism under the Warren and Burger Courts. This origin story is compelling. The problem is that it is not true—not where the test came from or even what it is. The Court’s narrative erases decades of social-movement conflict that this Article is the first to excavate. This Article marshals original archives to reveal that the history-and-tradition test was fashioned from the crucible of earlier struggles: over the value of deep and more recent history, over which communities and what kind of evidence define tradition, and, ultimately, over the role of America’s past in our constitutional present.

The contours of this debate were sharpened across doctrines and eras, inside the courts and beyond them. Recovering this history uncovers a rival vision of the history-and-tradition test—not entrenched but evolving. Taking seriously this dynamic alternative makes three contributions. First, it casts doubt on major decisions about race, abortion, guns, and God, while challenging the fixed-in-time conception of traditionalism these rulings stand on. Second, the more adaptive version of history and tradition sheds light on puzzles, including the levels-of-generality problem, the constitutional-progressive response to charges of judicial activism, and how a modern conservative legal coalition was forged out of fierce divisions over originalist methods and outcomes. Finally, this lost method bears surprising implications for claims that span the ideological spectrum: from fetal rights and gay marriage to gender-affirming care and conversion therapy. For instance, entrenched history and tradition probably would not operate to protect widely accepted rights such as interracial marriage and medical refusal. And evolving traditionalism could protect yet-unrecognized rights that it would not protect right now, such as aid-in-dying or assisted reproduction.

[G]uided by the history and tradition . . . , we must ask what the Fourteenth Amendment means by the term “liberty.” . . . [The answer is that it] does not protect the right to an abortion.¹

—Justice Alito

[T]his Court has instructed that the Establishment Clause [for government involvement with religion] must be interpreted by “reference to historical practices and understandings.”²

—Justice Gorsuch

Only if a firearm regulation is consistent with this Nation’s historical tradition . . . [does] the individual’s conduct fall[] outside the Second Amendment’s “unqualified command.”³

—Justice Thomas

INTRODUCTION

How should courts determine when individual freedoms enjoy constitutional standing? This is the central question that the U.S. Supreme Court answered in a recent trilogy of rulings about abortion, guns, and God.⁴

All three ascertained the status and scope of constitutional rights by invoking “history and tradition.”⁵

In Dobbs v. Jackson Women’s Health Organization, the Court enlisted a history-and-tradition test to overturn Roe v. Wade⁶ on the ground that a right to abortion is not “deeply rooted in this Nation’s history and tradition.”⁷ New York State Rifle & Pistol Association v. Bruen revolutionized the Court’s Second Amendment doctrine by striking down gun control measures that do not “comport[] with history and tradition.”⁸ And in Kennedy v. Bremerton School District, the Court set aside its fifty-year-old Lemon test—which assesses church/state violations according to a law’s purposes, effects, and entanglement with religion⁹—and replaced it with an approach that’s anchored in the “traditions undergirding” the Establishment Clause, “consistent with a historically sensitive understanding” of its provisions.¹⁰

The role assigned to history and tradition varies across these contexts, as does the relationship between the two.¹¹ The constant in each is how rights claims are interpreted based on history and tradition: not what the text originally meant to people who were alive when it was ratified or the normative understandings that are most desirable to us today, but the social practices that resonate with our shared history and tradition. Reliance on history and tradition has made waves in a range of other constitutional domains too: from free speech, affirmative action, and voting rights, to tribal authority, immigration, and sentencing.¹² All told, the Court’s appeal to history and tradition has upended decades of settled law across the constitutional landscape, with a raft of new occasions on the horizon.¹³

A rich literature has emerged to unpack this turn to history and tradition. Sherif Girgis identifies the distinguishing mark of that test as gleaning constitutional meaning from “practices” that are widely accepted or deeply embedded within American life.¹⁴ Miranda McGowan expounds that these meaning-making practices may be undertaken by elected officials, social movements, or other ordinary citizens working together.¹⁵ Larry Solum and Randy Barnett explain that the relevant social practices enjoy density, breadth, and staying power in relation to a constitutional amendment or provision at issue.¹⁶

Marc DeGirolami distinguishes those practices from other sources of interpretation.¹⁷ They’re not moral principles like the “evolving standards of decency” that shape which punishments the Eighth Amendment bars as cruel or unusual, consistent with “the progress of a maturing society.”¹⁸ Nor do judicial precedents count as practices¹⁹—that is, unless it is state court judges applying state constitutional texts. Curtis Bradley and Neil Siegel clarify that the social practices which make up history and tradition constitute more than “historical gloss” on constitutional powers or limits.²⁰ They’re a standalone criterion for adjudicating disputes about when and why the Constitution recognizes individual rights.

Scholars have also criticized the use of history and tradition in Dobbs. Reva Siegel reveals that the majority’s method of discerning social practices by counting state laws was deployed by segregationists before it was rejected in Brown v. Board of Education.²¹ Aaron Tang argues that almost half the states that Dobbs credits wholesale abortion bans to, in fact, allowed the ending of pregnancies until quickening.²² Melissa Murray and Katherine Shaw show how democratic deficits like gerrymandering cast doubt on Dobbs’s rhetorically potent claim that abolishing the national right to abortion would facilitate deliberation in the states.²³

Yet the most salient feature of this history-and-tradition test has received just passing reference. Namely, it asks whether the putative right in question fits within a pattern of practice relative to the Bill of Rights or Civil War Amendments.²⁴ That inquiry is rooted in the era of ratification. The Supreme Court has presented this temporal limit as natural and neutral, detached from preferences or politics.²⁵ On the Court’s telling, the test emerged in response to the freewheeling, unenumerated-rights decisions of the Warren and Burger Courts. The Rehnquist and Roberts Courts turned to the history and tradition of a long-ago past in order to rein in that earlier impulse for Justices to make policy.²⁶

This fixed-in-time approach promises to anchor constitutional rights and even to resolve interpretive disputes about them by appeal to shared customs. Yet it distorts the origins and implications of the history-and-tradition test, obscuring fierce debates over its meaning and significance in 2024 cases about guns,²⁷ immigration,²⁸ presidential immunity,²⁹ and free speech.³⁰ The history-and-tradition approach has fractured Justices on matters including the space it makes for post-ratification evidence,³¹ what other kinds of evidence help to establish a tradition,³² what level of generality a tradition should be articulated at,³³ whether history and tradition can constrain Justices,³⁴ and its relationship to originalism.³⁵ These conflicts cannot be fully understood without a sense of the historical struggles over history and tradition that shape today’s debate. This Article excavates the origins of these debates to uncover a rival version of the history-and-tradition test missing from contemporary cases and commentary. Our analysis chronicles the deep roots that this hidden conception has in the Court’s own jurisprudence and the social-movement struggle that has unfolded alongside it. And it spells out distinctive attractions of this alternative for constitutional theory and practice.

Part I and II mine original archives to unearth a more dynamic understanding of this test that sees the potential for consequential practices to change over time when newer customs dislodge older ones. On this account, traditions aren’t entrenched but evolving. Those of more recent vintage must still have a longstanding pedigree and be deeply embedded into the fabric of the American life, even if they’re contested in a diverse and polarized country. This evolving form of traditionalism runs through half a century of conservative and liberal opinions, amicus briefs, and social movements. “[T]radition is a living thing” is how Justice John Marshall Harlan II described this ideal in 1961.³⁶

Part II reveals that entrenched traditionalism did not emerge until the 1980s. That is when Christian conservatives and the right-wing legal movement sought to bridge growing divides among them by harmonizing originalist interpretive methods with natural-law principles that were seen as predating the Constitution and informing it. The Federalist Society embraced interpretive methods based on original public meaning.³⁷ But antiabortion lawyers and other social conservatives sometimes found originalism too limiting and worried that it would not deliver their preferred outcomes that states be made to promote Christian values, and that laws permitting abortion be struck down as unconstitutional.³⁸ An entrenched approach to history and tradition forged a powerful coalition on the political right, allowing for evidence of what social conservatives deemed Christian teachings and Western values.

Part III spells out three payoffs of recovering the evolving vision of that test. First, it makes progress on doctrinal puzzles like the levels-of-generality problem;³⁹ the enduring charges that reliance on tradition is both too manipulable (covering for judicial activism) and too intransigent (rooting injustices);⁴⁰ and the blurry lines between traditionalism and methods that resemble it, like historical gloss (to clarify ambiguous terms) and liquidation (to lock in their meaning).⁴¹ Second, resurrecting that evolving history-and-tradition test offers a shared vocabulary with the mediating potential to broker ideological compromise (between the prevailing interpretive extremes of conservative and progressive constitutional theory) by splitting the difference between originalism and living constitutionalism.⁴² Finally, we apply both traditionalisms—entrenched and evolving—to show how each would resolve controversies from fetal rights and gay marriage to gender-affirming care and conversion therapy. The implications are surprising. For example, the entrenched history-and-tradition test likely would not protect widely accepted rights such as interracial marriage and medical refusal. Meanwhile, evolving traditionalism might protect yet-unrecognized rights like aid-in-dying and assisted reproduction in a future that made these practices routine, but it probably would not protect any of them right now.

I. SOCIAL MOVEMENT POLITICS

Today’s Supreme Court majority advances a distinctive origin story for the history-and-tradition test. Dobbs directs our attention to struggles over substantive due process in the 1960s and 1970s.⁴³ But there are other plausible places to begin telling the history of the history-and-tradition test. The uses of history in jurisprudence could be documented from the Court’s early cases at the outset of the nineteenth century. A more recent point of departure emerges in the second half of the twentieth century, when social movements first contested the meaning of history and tradition. Or one could start with the uses of history and tradition that have become so salient over the Court’s last couple Terms. A sensible middle ground for launching the history of history and tradition is when the Court got into the business of recognizing unenumerated rights in the early twentieth century.

It is true that Supreme Court decisions of the nineteenth century mentioned rights that animate the “fundamental principle[s] of a republican government”⁴⁴ or that applied to “all civilized nations.”⁴⁵ For example, in the 1823 case of Corfield v. Coryell, George Washington’s nephew, Justice Bushrod Washington, described “privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union.”⁴⁶ History and tradition also appears to have figured centrally in early jurisprudence on the Seventh Amendment.⁴⁷ These earlier discussions matter for various purposes adjacent to ours.⁴⁸

We focus our historical analysis on the twentieth and twenty-first centuries because that reflects the most faithful understanding of the history-and-tradition test applied by the Court today.

The question at the center of our inquiry—whether tradition and history are entrenched or evolving—became far more central to social-movement and judicial debate in the past several centuries than it was before. Consider the account of “general law” developed by William Baude, Jud Campbell, and Stephen Sachs—they argue that the Fourteenth Amendment “secured but did not confer” rights already recognized in general law, which was “derived from general principles and customs and operating across jurisdictions.”⁴⁹ These scholars acknowledge that the scope of the general law was characterized by “imprecision and woolliness”—not least when it came to the question of whether general-law principles were fluid, “capable of developing over time, through a course of long-standing legal practice”⁵⁰—and whether the “rights of Englishmen,”⁵¹ as Sachs writes, were a “closed set.”⁵² Baude, Campbell, and Sachs recognize that nineteenth-century Justices were comfortable with the imprecision of general law and did not always openly grapple with questions about the scope of common-law custom and tradition in ways we might expect today.⁵³ In the twentieth and twenty-first centuries, by contrast, the fixed-versus-fluid question became a flashpoint for constitutional conflicts for a range of actors.⁵⁴ By studying their debates, we can gain crucial perspective on the workings and origins of both an evolving and fixed approach to history and tradition today.

Earlier discussions of common-law tradition bear an ambiguous relationship to present-day case law. With the decisions of Slaughter-House Cases⁵⁵ and later, Erie Railroad Co. v. Tompkins,⁵⁶ the Court rejected the readings of the Privileges or Immunities Clause favored by some originalist scholars. Accordingly, Baude, Campbell, and Sachs acknowledge that their approach to general law might be—and remain—“legally dead.”⁵⁷ Earlier understandings of tradition—perhaps rooted in general law or in the Privileges or Immunities Clause—may not tell us much about how the Court will apply a history-and-tradition test in the future. While Sachs reads Dobbs as consistent with originalist arguments about the Privileges or Immunities Clause or general law,⁵⁸ profound tensions separate the approaches rejected in Slaughter-House and Erie from present-day traditionalism, which is better understood as a new phenomenon that’s distinct from originalism and worth taking seriously in its own right.⁵⁹

To be sure, by the twentieth century, the Court had long referred to tradition when the Justices decided the 1905 working-hours case of Lochner v. New York. There, the Supreme Court recognized a “liberty of person or of free contract” provided for in the Federal Constitution with little mention of where that liberty came from or how to identify it.⁶⁰ But in dissent, Justice Oliver Wendell Holmes advanced a role for history and tradition, suggesting that the meaning of the Fourteenth Amendment might be gauged by evaluating whether “a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”⁶¹

Holmes did not explain how one should go about identifying such a tradition beyond suggesting that many a “reasonable man” would find nothing wrong with the disputed New York law.⁶² It would be another decade until a majority hinted at a role for tradition and history.⁶³ In the parental liberty case of Meyer v. Nebraska, the Court held that the Due Process Clause protected “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”—without explaining how they counted, or how much.⁶⁴ We focus on the period after Meyer because judges, litigators, and eventually, grassroots movements began a more robust debate about how tradition mattered in law. Which traditions should count—and was tradition necessarily backward looking? What kinds of evidence could establish a tradition? These questions began to more centrally influence debates on the pages of the United States Reports and beyond in the first decades of the twentieth century.

A. The Pre-History (and Tradition)

Arguments about history and tradition played a more dominant role in incorporation debates surrounding the Fourteenth Amendment.⁶⁵ In the years following the ratification of the Fourteenth Amendment, the Supreme Court has eviscerated its Privileges or Immunities Clause, leaving litigants to rely on the Due Process Clause when challenging the constitutionality of state policies.⁶⁶ Competing ideas about the effect of the Fourteenth Amendment on the Bill of Rights emerged after the Court began incorporating parts of the Bill of Rights against the states in Gitlow v. New York in 1925.⁶⁷ While Justice Hugo Black maintained that the Fourteenth Amendment had only incorporated the Bill of Rights,⁶⁸ other Justices believed that the Due Process Clause was itself a source of fundamental rights.⁶⁹

1. Holmes and Moody

Justice Holmes’ reflections on history and tradition came into clearer view in one early case, Twining v. State of New Jersey, where he joined a majority opinion suggesting that the meaning of tradition shifted over time.⁷⁰ Twining, a bank manager facing misdemeanor charges, had declined to testify on his own behalf, and a prosecutor suggested that his reasons for doing so were less than pure.⁷¹ Twining protested, arguing either that the Fourteenth Amendment incorporated a right against self-incrimination or that such liberty wasn’t enumerated under the Fourteenth Amendment.⁷² Rejecting Twining’s claim, Justice William Henry Moody laid out three principles governing unenumerated rights. He wrote that such a right could be “ascertained by an examination of . . . the common and statute law of England before the emigration of our ancestors.”⁷³

But this historical inquiry was not the end of the matter.⁷⁴ Moody suggested that the meaning of history and tradition was subject to change, but only in rare circumstances when government action offended “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”⁷⁵ Twining ultimately lost—because the Court did not think that the right against self-incrimination had adequate historical pedigree, to be sure, but also because the Court found no evidence that the relevant tradition had changed.⁷⁶

This vision of tradition echoed the conservatism of Edmund Burke, the Anglo-Irish theorist who loomed large in early conservative constitutional theory.⁷⁷ Burke celebrated the wisdom reflected in time-tested social practices more than whatever meaning could be derived from abstract theories or principles.⁷⁸ Yet, he squarely rejected the notion that tradition could not change. Tradition, as Burke saw it, did not change in response to “floating fancies or fashions.”⁷⁹ But its slow pace of reform is not the only reason that tradition worked as a welcome check on haste or revolution. Precisely because tradition was flexible is what invited a manageable and incremental kind of change that discouraged more radical ruptures with the past.⁸⁰ In Twining, Justice Moody implicitly embraces this Burkean conception of tradition.

2. Ozie Powell and Frank Palka (not Palko)

An evolving-tradition test circulated in the Court’s jurisprudence throughout the 1930s, though its contours remained fuzzy. In Powell v. Alabama, for example, Ozie Powell and four other Black teenagers had hitched a ride on a freight train crossing Alabama when they got into a fight with several white boys.⁸¹ Two white girls then accused Powell and his co-defendants of sexually assaulting them.⁸² The State tried Powell and his co-defendants without appointing defense counsel and sentenced all five to death.⁸³ Powell’s counsel responded that Alabama had denied the defendants due process of law by failing to appoint them counsel.⁸⁴ The Court recognized that, in the past, it had applied a primarily backward-looking history-and-tradition test, asking about “the settled usages and modes of proceeding under the common and statute law of England before the Declaration of Independence,” assuming they had not proven “unsuited to the civil and political conditions of our ancestors by having been followed in this country after it became a nation.”⁸⁵ Based on the evidence before it, the Powell Court concluded that the right to counsel failed this backward-looking test.⁸⁶ Nevertheless, the Court found that such a right was central to due process by focusing on “later cases,” including Twining itself.⁸⁷

By contrast, in Snyder v. Massachusetts, a man faced charges for murder and armed robbery, and prosecutors filed a motion requesting that jurors be brought to the gas station where the murder took place.⁸⁸ Snyder argued that defendants had an unenumerated right to tour crime scenes alongside jurors—a right deeply rooted in the nation’s tradition and history.⁸⁹ In rejecting Snyder’s claim, the Supreme Court likewise scoured decisions dating back to 1747 and said little about current practice.⁹⁰

But elsewhere, the Court reiterated that tradition was a living thing. In an incorporation case, Frank Palka (whose name would be forever misspelled as “Palko”) broke into a store, stole a phonograph, and murdered a police officer while making a getaway.⁹¹ A Connecticut jury convicted Palka, but the State appealed, invoking a Connecticut law permitting new trials when there had been an error “to the prejudice of the state.”⁹² Palka’s appointed lawyer, David Goldstein, argued that a second trial would violate Palka’s right to avoid double jeopardy.⁹³ In Palko v. Connecticut, the Court held that double jeopardy protections did not qualify as a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”⁹⁴ In reaching the conclusion, the Court said almost nothing about the constitutional past.⁹⁵ “Reflection and analysis” were all that was required—whether the Court could imagine an equitable justice system without such a right.⁹⁶

B. Post-War Family Planning

A more full-throated vision of an evolving history-and-tradition test emerged from conflicts about birth control—many of them unfolding outside the Supreme Court. Following World War II, Planned Parenthood combined arguments about the need to curb population growth with existing claims about the rights of married couples to plan their families.⁹⁷ But in the 1950s, it was segregationists rather than birth controllers who insisted that the past should guide constitutional interpretation—and that constitutional meanings were entrenched rather than evolving.⁹⁸ As Reva Siegel has shown, the famed Supreme Court litigator John Davis, who represented South Carolina in the Brown litigation, argued that the meaning of the Fourteenth Amendment was fixed at the time of ratification.⁹⁹ To determine the amendment’s original expected application, Davis pointed out that “23 [states] either then had, or immediately installed, separate schools for white and coloured children.”¹⁰⁰ Davis’s argument ultimately failed to convince the Brown Court. But other segregationists persisted in using state counting as a key method to establish constitutional meaning.¹⁰¹

1. “Tradition is a living thing.”

A different vision of the role for history and tradition appeared in conflicts about contraception at the Supreme Court. In the 1950s, Planned Parenthood lawyers hoped to challenge Connecticut’s anti-contraception law, the last in the nation to bar birth control by married couples.¹⁰² By 1961, when the Supreme Court was poised to hand down a decision on the law, the environment seemed ripe for a favorable decision. The FDA approved the birth control pill in May 1959, and within two years, one million people had used it.¹⁰³

The case that would become Poe v. Ullman had been winding its way through the Connecticut courts, and the plaintiffs in Poe told various horror stories about their lack of contraceptive access: one woman suffered three consecutive stillbirths, while a second nearly lost her life as a result of a foreseeably dangerous pregnancy.¹⁰⁴ Their attorney, Fowler Harper, made little mention of an unenumerated right to privacy. His argument instead mirrored an amicus brief from the Planned Parenthood Federation of America: the Connecticut law lacked a rational basis, forcing couples to use contraceptive methods that were “the most unreliable and least desirable.”¹⁰⁵ Nor did Connecticut mention history and tradition in defending the law, instead chastising Planned Parenthood for making an argument that was “sociological and physiological rather than legal.”¹⁰⁶

It was Justice John Marshall Harlan who raised the importance of history and tradition in his Poe dissent. The majority ruled that the plaintiffs had not suffered a redressable injury because they faced neither prosecution under the Connecticut law nor a realistic threat of one (after all, as the majority remarked, birth control was “commonly and notoriously sold in Connecticut drug stores”).¹⁰⁷ Justice Harlan disagreed. He said that the Court should identify unenumerated rights by consulting “what history teaches are the traditions from which it developed as well as the traditions from which it broke.”¹⁰⁸ The meaning of neither history nor tradition was fixed, in his view. “That tradition is a living thing.”¹⁰⁹ Harlan’s test pointed to a traditionalism that evolves. This change doesn’t come easy or rely on “merely personal and private notions.”¹¹⁰ But when a tradition did evolve, and when a new way of being fell into place, it was this more recent constitutional understanding that carried the day—in the tradition that married couples were using contraception to plan their families.¹¹¹

2. Constitutional Updating

Harlan’s opinion failed to carry the day in Poe, and his dissent did not command the change that he sought in social practices around privacy and birth control. But his proposed inquiry into evolving traditions raised a hard question about majority decisions that might influence such reform in the future. What if a judicial intervention itself nudges a tradition to change, or undermines a shift otherwise and already underway? Curtis Bradley and Neil Siegel observe that updating the Constitution in response to society’s changing needs “implicates an inherent tension between the benefits of customary evolution and centralized judicial review. Given the authority that federal courts possess in our constitutional system today, practice is likely to coordinate around judicial decisions.”¹¹² Won’t the recognition of salient rights like contraception and interracial marriage leave a mark on those practices? How can the Supreme Court identify an organically evolving tradition within American society if its own decision reworks the very content of that tradition or what it ultimately comes to be?¹¹³

Legal historians harbor well-founded skepticism about the degree to which the Supreme Court changes public attitudes or popular understandings of the Constitution, never mind the social traditions that might follow from those ideals. Scholars like Jeffrey Rosen, Reva Siegel, and Robert Post have documented the extent to which the Court tends to mirror or codify constitutional understandings, rather than transform them.¹¹⁴ They present robust evidence to reject a strong version of the transformation claim that the Court alone can dictate a new tradition. What of a weaker version? The first important thing to say is there is good reason to think the Court’s decisions have little meaningful effect on behavior at all—whether because most of its rulings don’t break through into the public conscience, or because, even if they do, most Americans may find the reasoning or result unconvincing.¹¹⁵

But two other possibilities emerge. First, the Court might sometimes reinforce or advance a shift that is already underway. Michael Klarman shows that seems to have happened with Brown, further legitimizing a new consensus in favor of integration.¹¹⁶ Also Obergefell, which might have done the same for same-sex marriage.¹¹⁷ On other occasions, backlash to a decision may push a tradition in the opposite direction. For example, the Massachusetts Supreme Judicial Court’s same-sex marriage decision in Goodridge v. Department of Health appeared to have triggered resistance to same-sex marriage, at least in the short term.¹¹⁸ Dobbs looks to have sparked a similar backlash.¹¹⁹ By the most reliable accounts, the incidence of abortions hasn’t gone down overall since trigger bans went into effect, with many Americans in ban states accessing pills by mail or crossing state lines for care.¹²⁰

In evaluating an evolving tradition, it makes little sense to disentangle the influence of an intervening decision that makes, at most, a modest contribution within a larger constitutional conversation. A decision might nudge changes in social practice in one direction or another. But that influence depends on the persuasiveness of its reasoning and the extent to which a court’s conclusion tracks what people already think. The evolving test needn’t stop its search for relevant practices when the Court hands down a decision that recognizes a new right or takes an old one away. Instead, it looks to the most current among longstanding traditions, which in turn incorporates how much, if at all, the Court ended up impacting that tradition and how.

3. Privacy and Penumbras

Harlan’s evolving-tradition test reflected this dialogic dynamism. It embodied the idea that social practices around contraception had changed, especially among married people, including Catholics.¹²¹ In the early 1960s, many believed that the Vatican would soften its opposition to birth control,¹²² and some Catholic leaders suggested that the church’s living traditions compelled them to do so.¹²³ By the mid-1960s, there were signs that lay Catholics made claims on tradition as well—over half of them in a 1966 poll favored federal funding for contraceptive programs.¹²⁴ While this dialogue took place mostly within Catholicism, its effects reverberated more broadly, for it had been Catholics who had most vigorously opposed the legalization of contraception since at least the 1930s.¹²⁵

This idea of an evolving tradition around contraception struck proponents of birth control as promising, and Harlan’s idea of a living tradition appeared to be a perfect vehicle for it. When Griswold came before the Court, Thomas Emerson and Katie Roraback, the attorneys for the Planned Parenthood League of Connecticut, argued that there was an unenumerated right to privacy that encompassed married couples’ use of birth control.¹²⁶ But how would a court define its limits? Citing Harlan’s dissent in Poe, Roraback and Emerson offered three guideposts for an evolving tradition test: “reason, tradition and current practice.”¹²⁷ Only proof of a new way of being, one that mirrored “current practice,” would carry the day because it would show that the relevant constitutional tradition had changed.

The Court’s decision in Griswold hardly settled questions about the utility of an evolving history-and-tradition test. Justice William O. Douglas’s majority opinion famously concluded that this right could be found in the Constitution’s penumbras.¹²⁸ The constitutional past seemed to matter in this analysis: Douglas stressed that marital use of contraception touched on a right to privacy older than the Bill of Rights, but the precise role for history or tradition was hardly clear.¹²⁹ Justice Goldberg’s concurring opinion centered on the Ninth Amendment and looked to history and tradition for guidance in fleshing out which liberties that amendment guaranteed.¹³⁰ By far the longest discussion of an evolving tradition test, however, came in Justice Hugo Black’s dissent.¹³¹ He argued that any evolving-tradition test required judicial activism.¹³² How could the Justices determine that a tradition had changed? Black quipped: “Our Court certainly has no machinery to take a Gallup poll.”¹³³

C. Sex, Abortion, and Cohabitation

After Griswold, the fate of an evolving-tradition test would intersect with a growing movement to reform criminal abortion laws.¹³⁴ In 1962, the American Law Institute (“ALI”) released changes to the Model Penal Code that included proposed reforms to criminal abortion laws, including exceptions for rape, incest, and certain fetal abnormalities and health threats.¹³⁵ By the mid-1960s, some state legislators had begun considering ALI bills, and antiabortion scholars, lawyers, and activists started to mobilize.¹³⁶

Leading antiabortion commentators insisted that respect for fetal life (and the criminalization of abortion at any stage in pregnancy) were deeply rooted in the nation’s history and tradition—and that this conviction had nothing to do with Catholicism, the faith practiced by most in the early antiabortion movement. At first, these arguments, too, echoed the idea of an evolving tradition. Antiabortion scholars did not limit their claims to the idea that Christian teachings, Western civilization, and the common law had always protected fetal life, even if some, like antiabortion scholar Eugene Quay, argued that “[p]rotecting the life of the unborn child has been a major concern of the earliest laws known to us.”¹³⁷

1. Catholics, Protestants, and Jews

Abortion-rights supporters questioned whether the nation’s history and tradition were as clear as abortion opponents claimed—in either the past or the present. In 1967, the Protestant Council of the City of New York and three Jewish organizations released a statement insisting the contemporary opposition to abortion did not reflect Judeo-Christian values or even national customs.¹³⁸ Harriet Pilpel of Planned Parenthood similarly explained in 1970 that “[t]hose of us who did not grow up in rigid religious tradition which decries all abortion . . . as murder, look at abortion . . . in terms of freedom of choice as to when and whether to have a child.”¹³⁹ The history and tradition of abortion remained contested as the conflict moved into the courts.¹⁴⁰

Significantly, both proponents and opponents of legal abortion at times framed tradition as evolving. In 1971, for example, Robert Byrn, an antiabortion law professor, sought to be named the guardian ad litem for all fetuses scheduled for abortion in New York City’s municipal hospitals.¹⁴¹ While claiming that rights for the fetus had been recognized since “time immemorial,” Byrn stressed that this claim constituted a living tradition, with emerging awareness of the rights and humanity of the unborn child in modern tort law, human rights law, and welfare law.¹⁴² Byrn thus conceded that constitutionally relevant traditions change over time.¹⁴³ In rejecting his fetal-rights argument on the merits, the New York Appellate Division defined history and tradition in a similar way, looking both to understandings at the time of the founding and the shifting meanings established in the present day.¹⁴⁴

2. From Poe to Roe

When the Supreme Court agreed to hear Roe v. Wade, those on both sides contested how a history-and-tradition test would apply to the constitutional status of abortion bans. Some antiabortion attorneys like Joseph Witherspoon, a member of the board of directors of the National Right to Life Committee, focused not on Poe’s evolving traditionalism, but on what he described as the original meaning of the Fourteenth Amendment.¹⁴⁵ In an amicus brief for the National Right to Life Committee, Juan Ryan, the long-standing president of the organization, likewise suggested that abortion could not be an unenumerated right unless there was an unbroken tradition supporting it.¹⁴⁶ Ryan argued that abortion “was always condemned at common law.”¹⁴⁷

In Roe, abortion-rights groups made their own claims about history and tradition. Planned Parenthood’s amicus brief in Roe sought to discredit the historical ancestry of fetal personhood, claiming that there was “only one instance other than the very recent abortion cases in which the contention has been made that a fetus is a person under the Fourteenth Amendment.”¹⁴⁸ An amicus brief submitted by a coalition of feminist organizations insisted that an evolving tradition test favored the recognition of abortion rights.¹⁴⁹ The Fourteenth Amendment, the feminist brief reasoned, required an analysis of “its full development and its present place in American life throughout the Nation.”¹⁵⁰

When the Court handed down a decision in Roe, the meaning of history and tradition lurked in the background of the debate between the majority and dissent. The majority acknowledged that medical customs around abortion had once been very different, culminating in abortion’s criminalization in most states during the nineteenth century.¹⁵¹ Critical to the majority’s telling was how the relevant tradition had changed: physicians had called for the reform of criminal laws, and abortion itself had become safer.¹⁵² Roe credited these changing practices and values in defining the scope of constitutional privacy.¹⁵³ By contrast, Justice William Rehnquist, writing in dissent, emphasized that the framers of the Fourteenth Amendment would not have recognized a right to choose abortion, but that’s not all.¹⁵⁴ He also suggested that the abortion right would fail an evolving history-and-tradition test. “Even today,” he said, “when society’s views on abortion are changing, the very existence of the debate [about abortion] is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe.”¹⁵⁵

3. City of East Cleveland

Harlan’s evolving history-and-tradition test reemerged in the Supreme Court in Moore v. City of East Cleveland.¹⁵⁶ Ordinances like the one in Moore, which zoned certain neighborhoods for nuclear families, formed part of an intensifying conflict about what the American Civil Liberties Union (“ACLU”) called sexual privacy.¹⁵⁷ A backlash to the sexual revolution in the 1960s and 1970s took aim at nonmarital cohabitors.¹⁵⁸ In 1972, twenty-eight states and several local communities criminalized cohabitation outside of marriage.¹⁵⁹ A more subtle strategy used family zoning ordinances like the one in Moore to exclude couples who did not wish to marry or were prevented from doing so by law.¹⁶⁰

This backlash belied fundamental changes in how Americans lived. Attitudes toward premarital sex were becoming more permissive, and premarital sex was becoming more common.¹⁶¹ By the 1970s, the advent of no-fault divorce meant that marriages were often temporary—the rate of no-fault divorces doubled¹⁶²—and the women’s liberation movement challenged a sexual double standard governing marriage while insisting that marriage should be unnecessary for women’s security or thriving.¹⁶³ The practice of living with non-nuclear family was increasingly common, even if states and cities sought to rein it in.

In Moore, Inez Moore was raising her grandsons, and her attorneys argued that the nation’s evolving history and tradition meant that East Cleveland could not use its zoning laws to exclude a family like hers.¹⁶⁴ Moore’s brief stressed that the extended family was an “institution that predates, and very likely will antedate, other legal and social institutions, such as the municipality.”¹⁶⁵ But contemporary recognition of the importance of the extended family was important too. “This practice of expanding the home to assist relatives,” the brief explained, “has continued to be an accepted tenet of our society.”¹⁶⁶ The ACLU’s brief in Moore asked the Court to go further, recognizing a substantive due process right to “determine basic family relationships and living arrangements,” as well as “broad rights to free association and privacy within the home.”¹⁶⁷

The Court voted to invalidate East Cleveland’s ordinance, and Justice Lewis Powell wrote a plurality opinion joined by three of the Court’s more liberal Justices.¹⁶⁸ Powell agreed with the ACLU that Moore’s decision to live with and raise her grandsons fell into the category of family rights protected under the Fourteenth Amendment.¹⁶⁹ Powell acknowledged that “[t]here are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights.”¹⁷⁰ At the same time, he made clear that traditions must change, and often did, but that the process took time and required the forging of new norms and consensus.¹⁷¹ The risks of judicial overreach were no reason for leaving unenumerated rights unenforced or artificially limited. Instead, the Court would look to an evolving tradition test, one that would show “respect for the teachings of history [and] solid recognition of the basic values that underlie our society,” while recognizing and honoring meaningful changes in tradition over time.¹⁷²

II. FORGING A CONSERVATIVE LEGAL MOVEMENT

A very different conception of history and tradition helped to bridge divides in an emerging conservative coalition. By the early 1980s the Federalist Society had formed and was rapidly expanding, with Ronald Reagan tapping the organization’s members to join his administration or nominating them to the federal judiciary. Originalism emerged as a foundational principle that guided the conservative legal movement’s approach to the Constitution and led the Reagan Administration to promise voters revolutionary changes in the law under the cover of neutrality. But originalism itself was not a perfect vehicle for the demands of the emerging conservative Christian bar or its counterparts in the antiabortion movement.

Conservative Christian lawyers, for their part, believed that the nation’s founding itself was explicitly Christian and wove religious teachings into the founding document—a claim that the Federalist Society was not prepared to make. A kind of Burkean history-and-tradition test did not suit conservative Christian lawyers either. Judges who adopted it had recognized the very rights that conservative Christians believed to be at odds with the nation’s founding character. For abortion opponents, arguments from original intent or original public meaning for fetal personhood were complicated because the framers of the Fourteenth Amendment said nothing about abortion, and because the antiabortion movement of the nineteenth century said nothing about the Constitution.¹⁷³

A looser focus on history and tradition—as opposed to original intent, original public meaning, or original expected application—had a unique appeal for social conservatives. For abortion opponents, looking more broadly at history and tradition could account for a range of other evidence beyond 1868 that included stigma surrounding abortion, criminal abortion laws that remained in place for nearly a century, and the like. For conservative Christians, a history-and-tradition approach could allow attorneys to weave in beliefs about a faith-based founding without explicitly tying interpretation to natural law or religious doctrine—and without imputing a desire to enforce Christian beliefs to framers who themselves had varied views of religion. This new history-and-tradition approach wasn’t evolving but entrenched. It assumed that the meanings of constitutional provisions were more or less fixed around the time of their ratification—and that later developments and constitutional understandings were entirely irrelevant.

A. Coalition and Constitution-Making

1. The Federalist Society

In 1968 and 1972, Richard Nixon had campaigned on criticism of the Supreme Court, which he painted as soft on crime.¹⁷⁴ Nixon’s comments galvanized conservatives who were critical of what they saw as unprincipled decisions of the Warren and Burger Courts. But in the 1970s, Nixon nominees hardly proved to be rock-ribbed conservatives. After all, it was a Nixon nominee, Harry Blackmun, who wrote the majority in Roe.¹⁷⁵

Ronald Reagan’s election in 1980 represented an unprecedented opportunity for the Federalist Society, which organized in 1983.¹⁷⁶ The founders and early members of the Federalist Society had any number of objections to the legal status quo. Some, aligned with business interests and libertarianism, sought to create a legal bulwark against the threat posed to business by progressive public interest groups like the Environmental Defense Fund.¹⁷⁷ Others had concerns about what they saw as race-based preferences or religious liberty.¹⁷⁸ The Federalist Society itself served as an umbrella for conservative lawyers that would “break what [members] see[] as the liberal control of many of the institutions of modern America.”¹⁷⁹

For Reagan, the Federalist Society offered a ready supply of smart and reliably conservative lawyers, both for positions in the administration and judicial nominations. Attacks on the Court delivered a potent political payoff.¹⁸⁰ On the campaign trail, Reagan channeled backlash to the decisions of the Warren and Burger Courts and vowed to stop the Court from “threatening to change traditional ways of life.”¹⁸¹ Reagan ran on a platform that included a commitment to nominate “judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”¹⁸²

But before and after his election, the American Bar Association hammered Reagan for elevating ideology over qualifications, and the administration looked for an interpretive method—or set of traits—that would appear neutral and legitimate while ensuring the kinds of results that Reagan demanded.¹⁸³ As Reva Siegel has shown, aligning with the Federalist Society offered an alternative source of legitimacy for the judges the administration put forward. Originalism, in turn, commended itself to the Reagan Administration and the conservative legal movement as a way to frame the administration’s vision of the law and identify sympathetic judges, without calling for substantive and specific outcomes.¹⁸⁴

After Reagan’s re-election, the Federalist Society established itself as a pipeline to power: Edwin Meese, the attorney general, launched an attack on judicial activism at the organization’s national gathering in 1985; Supreme Court Justice Antonin Scalia was another prominent speaker.¹⁸⁵ Where conservatives had been disorganized and demoralized, the Federalist Society united them by appealing to originalism and judicial restraint—and by rallying against the influence of left-leaning legal scholars like the movement for Critical Legal Studies.¹⁸⁶ The Federalist Society claimed that the legal left had distorted the judiciary’s proper role insofar as “the independence of the Supreme Court [was] at risk of being subverted by political gamesmanship.”¹⁸⁷

The Federalist Society was an insurgent force challenging a legal orthodoxy that had been accepted by a broad spectrum of legal professionals for decades—and was epitomized by the putative legalism of the Warren Court.¹⁸⁸ Reframing that legal consensus as political allowed Federalist Society leaders to claim that they were not revolutionaries but stewards of the rule of law.¹⁸⁹

2. The Rutherford Institute

But antiabortion lawyers and conservative Christian litigators did not see originalism as ideal, at least not how Meese and his colleagues defined it. Antiabortion lawyers hoped eventually for a court that would recognize fetal personhood.¹⁹⁰ In recent decades, the movement promoted a wide range of arguments that reflected existing Supreme Court jurisprudence—the recognition of a new suspect class or a substantive due process right—more than it did textualism or originalism.¹⁹¹ Attorneys for conservative Christian groups, like the Rutherford Institute, believed that courts should adhere to the Christian principles they claimed animated the nation’s founding.¹⁹² An entrenched history-and-tradition test could reconcile these ambitions with the Federalist Society’s calls for judicial modesty.

A trial of this entrenched approach to history and tradition came in the form of a struggle over the fate of criminal sodomy laws. As Bowers v. Hardwick was making its way to the Supreme Court, an emerging conservative Christian public-interest bar changed the claims made on a history-and-tradition test.¹⁹³ The Rutherford Institute, which opened its doors in 1982, played a particularly important role in the creation of a fully entrenched version of the test.¹⁹⁴ There were other conservative Christian litigation firms when John Whitehead launched Rutherford, but Whitehead himself was renowned because of his success in Christian publishing.¹⁹⁵ Like other prominent conservative Protestants, Whitehead maintained that the Constitution was a Christian document.¹⁹⁶ The Fundamental Law, “clearly expressed in God’s revelation as ultimately found in the Bible,” had shaped the nation’s founding as well as the Constitution, which “presuppose[d] the Declaration [of Independence] and the higher, fundamental law to which the Declaration [bears] witness[].”¹⁹⁷

When Rutherford filed as amicus in Bowers, an evolving-tradition test might have served Rutherford’s aims: less than a third of Americans polled in 1986 opposed sodomy bans.¹⁹⁸ But Rutherford attorneys framed the nation’s traditions as both Biblical and unchangeable, and they wove this conviction into a vision for the history-and-tradition test.¹⁹⁹ Antiabortion lawyers had made a similar argument in struggles over end-of-life decision-making, insisting that legitimate substantive due process rights had to reflect the broader history of “Western Civilization.”²⁰⁰ Rutherford’s amicus brief argued that criminal prohibitions of sodomy had roots in “the Judeo-Christian Scriptures.”²⁰¹ Remarkably, Rutherford also acknowledged that attitudes toward same-sex intimacy had changed—in recent years, tolerance for same-sex intimacy had grown—if not impressively.²⁰² But this contemporary history did not matter, Rutherford insisted, for a deeply rooted tradition could not evolve.²⁰³

Originalism might have delivered the same result in Bowers as this kind of entrenched history-and-tradition test. The framers of the Fourteenth Amendment had drafted its text at a time when criminal sodomy laws were venerable and unquestioned. It would not be long before state lawmakers began expanding sodomy laws to cover oral sex, while applying them more selectively to same-sex intimacy.²⁰⁴ Looking at an entrenched history and tradition—which could include scriptural condemnations of sodomy—would likely have yielded the same result. But for Rutherford, the point was to advance an alternative that could take into account other Christian and “Western” values across the broader run of cases—and to advance a test that both the conservative legal movement and Christian legal movement could sometimes embrace.

The Bowers Court did not fully adopt an entrenched history-and-tradition test, even as the Court upheld Georgia’s sodomy ban.²⁰⁵ The majority noted that “[p]roscriptions against [sodomy] have ancient roots,” and that more than a dozen states criminalized sodomy, both at the time that the Bill of Rights was written and at the ratification of the Fourteenth Amendment.²⁰⁶ But the majority also emphasized that there was no new, tolerant tradition regarding sodomy: “24 States and the District of Columbia continue to provide criminal penalties for sodomy.”²⁰⁷ Justice Burger, who contended that condemnation of sodomy was “firmly rooted in Judeao-Christian moral and ethical standards,” picked up on even more of Rutherford’s claim.²⁰⁸

B. From Michael H. to Casey

Movement organizations were not very involved in the 1989 case of Michael H. v. Gerald D., but the history-and-tradition test was front and center.²⁰⁹ Conflict over that test continued to be central in constitutional struggles over abortion too. The Supreme Court whittled away at Roe in a series of decisions, including another from 1989, Webster v. Reproductive Health Services, which articulated the view that Roe’s trimester framework was hopelessly unworkable.²¹⁰ When the Justices agreed to hear a challenge to a Pennsylvania multi-restriction law, in Planned Parenthood of Southeastern Pennsylvania v. Casey,²¹¹ reproductive rights attorneys Kitty Kolbert and Linda Wharton argued that the history-and-tradition test required exploration of “evolving standards” for both liberty and equality.²¹²

1. Integrating the New Christian Right

Antiabortion lawyers, for their part, invoked Bowers as the prime example of an entrenched history-and-tradition test²¹³: they argued that abortion failed that test because it had been “a crime at common law.”²¹⁴ The plurality decision in Casey invoked Justice Harlan’s dissent in Poe and reinforced that tradition was a “living thing”—one defined not by a single moment in the past (or any one interpretation of that moment).²¹⁵ Casey described the Court’s own substantive due process decisions as helping to define past tradition, but said little else.²¹⁶

Casey, together with growing conflicts over same-sex marriage and end-of-life decision-making, increased interest in a history-and-tradition test as a mobilizing tool on the right. Before the second half of the 1990s, mostly single-issue antiabortion groups had fought for influence in the conservative legal movement, with key figures bridging the divide between the two. These included such figures as James Bopp Jr., the influential general counsel for the National Right to Life Committee tapped to head a new election law and campaign finance committee within the Federalist Society, and Leonard Leo, the Federalist Society attorney with deep ties to antiabortion activism and conservative Catholic voters who had been tasked with steering Clarence Thomas’s Supreme Court confirmation through Congress.²¹⁷

2. Alliance Defending Freedom

In 1994, Larry Burkett, a tycoon in the world of Christian financial consulting, teamed up with Bill Bright, the founder of the massively successful Campus Crusade, to develop a conservative Christian alternative to the ACLU that they would call the Alliance Defense Fund (“ADF”) (later the Alliance Defending Freedom).²¹⁸ Bright and Burkett convinced a group of leading televangelists in 1993 that conservative Christian litigators were massively underfunded—a conclusion that led to the founding of ADF, which would fund cases involving “religious freedom, the sanctity of human life, and family values.”²¹⁹ Central to this vision was a particular approach to history and tradition, one that fixed on a point in the nation’s supposed past while assigning Christian Scripture a foundational role in determining the Constitution’s meaning. “America’s founders were Christians who established our nation on Christian principles, deeply rooted in the Bible,” ADF leader Alan Sears explained in a 1996 fundraising letter.²²⁰

ADF quickly built up a formidable budget, desperately needed by even the best-funded antiabortion groups, and ADF’s claims about the persecution of Christians resonated with antiabortion activists angry about the prosecutions and fines of those seeking to block entrances to reproductive health facilities.²²¹ But most antiabortion groups remained loathe to stray from a single-issue framework, and members of the Federalist Society did not openly embrace ADF’s vision of a Christian Constitution. Rallying around a history-and-tradition test could overcome these differences.

C. Evolving and Entrenched Traditionalism

In the mid-1990s, a handful of states began passing aid-in-dying laws. Antiabortion attorneys argued that those laws violated the Constitution.²²² When the Supreme Court agreed to hear Glucksberg, antiabortion groups privileged arguments about history and tradition.²²³ “It is clear that a right to assisted suicide is neither implicit in the concept of ordered liberty nor deeply rooted in American history and tradition,” the National Right to Life Committee argued.²²⁴

1. The Battle in Glucksberg

The right-to-die advocates litigating Glucksberg stressed that Casey had not “removed history and tradition from the due process equation.”²²⁵ Instead,

Casey recognized that constitutional significance inheres . . . not in the historic legality or illegality of a specific act, but in the treatment, in our history and tradition, of interests like those in bodily integrity and autonomy, in avoiding pain and suffering, and in making profoundly intimate and personal life-shaping decisions.²²⁶

The ACLU’s amicus echoed this interpretation, stressing that the right of “a mentally competent, terminally ill person to choose an end to [physical] suffering” was “deeply rooted in [the] Nation’s history and tradition.”²²⁷

Glucksberg rejected constitutional claims against assisted suicide but did not clearly embrace an entrenched history-and-tradition test. Justice Rehnquist’s majority opinion juxtaposed living constitutionalism with an alternative focused on “fundamental rights found to be deeply rooted in our legal tradition.”²²⁸ And Rehnquist stressed themes of judicial restraint that conservatives had tried to associate with an entrenched traditionalism, suggesting that a focus on history and tradition could “rein in the subjective elements that are necessarily present in due process judicial review.”²²⁹

But Glucksberg hardly focused on just a few points in the distant constitutional past.²³⁰ The Court also stressed more recent support for bans on aid-in-dying, which had “been reexamined and, generally, reaffirmed.”²³¹ And Glucksberg reaffirmed that Casey had applied a history-and-tradition test.²³² “[T]he Court’s opinion in Casey,” Glucksberg reasoned, “described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, . . . that they are protected by the Fourteenth Amendment.”²³³ This was a far cry from the evolving history-and-tradition test that Justice Harlan had set forth in Poe.²³⁴

2. From Lawrence to Obergefell

ADF used history and tradition to describe what its leaders understood to be divisive positions—for example, opposing heightened scrutiny for sex classifications—and to bridge possible divides with members of the Federalist Society and the conservative legal movement. Rather than denouncing sex equality or even feminism, ADF suggested that strict scrutiny for sex classifications would overturn deeply rooted laws recognizing “reasonable, time-honored differences between the sexes.”²³⁵ When it came to efforts to decriminalize same-sex intimacy, expand sex-education curricula, or bolster laws prohibiting same-sex marriage, ADF long framed its work as a fight to stop “homosexuals” from changing the law and using a “battering ram . . . to smash the biblical values on which our country was built.”²³⁶

By the end of the 1990s, these claims became politically toxic—and quite different from the kind of textualist and originalist arguments advanced by the Federalist Society. Polls showed growing tolerance for legalizing same-sex intimacy, and in the 1996 case Romer v. Evans, the Court struck down a Colorado state constitutional amendment for lacking a rational basis and codifying anti-gay animus.²³⁷ An entrenched traditionalism had operated to allow conservative movements to update what had become politically out-of-bounds claims. It also enabled them to frame the demands of the Christian legal movement and antiabortion forces in terms that the Federalist Society could accept.

Conservative Christians again sought to use arguments from history and tradition to create common ground in Lawrence v. Texas, a case involving a challenge to Texas’s sodomy ban.²³⁸ The State of Texas, for example, stressed that the nation had a tradition of “historically prohibiting a wide variety of extramarital sexual conduct.”²³⁹ Lawrence proved a devastating setback for proponents of an entrenched history-and-tradition test. Justice Kennedy’s majority began by casting doubt on the narrative of consistent hostility to homosexuality offered up by Bowers—as leading historians had documented, a focus on same-sex intimacy was relatively recent, as was an understanding of homosexuality as a stable identity.²⁴⁰ But the Lawrence Court suggested that it was the “laws and traditions in the past half century” that were of the “most relevance.”²⁴¹

Lawrence did nothing to decrease social-movement interest in arguments about history and tradition, especially as the fight for same-sex marriage continued. Groups like the National Organization for Marriage (“NOM”), founded in 2007 to preserve a California ban on same-sex marriage, presented their cause as a defense of “traditional marriage.”²⁴² In 2008, when the California Supreme Court held that the state constitution required access to marriage for same-sex couples, Maggie Gallagher, one of NOM’s co-founders, complained that the decision “brushed aside the entire history and meaning of marriage in our tradition.”²⁴³ In 2009, NOM moved its headquarters to Washington, D.C. and repackaged the group’s cause, as the Washington Post explained that year, to argue that “opposing gay marriage does not make them bigots, that the argument should have nothing to do with hate or fear, and everything to do with history and tradition.”²⁴⁴

Arguments about history and tradition also figured centrally in efforts to fortify the alliance between conservative Catholics, evangelical Protestants, and Orthodox Christians, spearheaded by Robert George, the Princeton professor who served as the chairman of NOM.²⁴⁵ George helped to draft and publicize the 2009 Manhattan Declaration, which identified traditional marriage, opposition to abortion, and support for a particular idea of religious liberty as the unifying demands of conservative Christians.²⁴⁶ The declaration, in turn, framed opposite-sex marriage as honored or even required by “Christian tradition, and . . . Western law.”²⁴⁷

History-and-tradition arguments also defined conservative movements’ strategies when a challenge to bans on same-sex marriage reached the Supreme Court in Obergefell v. Hodges.²⁴⁸ Some amicus briefs stressed that there was a history and tradition of allowing states to define marriage as they saw fit.²⁴⁹ Others suggested that only marriage between persons of the opposite sex was deeply rooted in the nation’s history and tradition.²⁵⁰ Obergefell embraced a kind of evolving traditionalism. Justice Kennedy’s majority underscored that “[h]istory and tradition guide and discipline” analysis of the Fourteenth Amendment, “but do not set its outer boundaries.”²⁵¹ What made this longer-term perspective so important, Kennedy said, is that “[t]he nature of injustice is that we may not always see it in our own times.”²⁵² But Obergefell would not usher back in the evolving traditionalism of yore.

An entrenched history-and-tradition test remained a priority for antiabortion lawyers, especially following the confirmations of Justices Gorsuch, Kavanaugh, and Barrett.²⁵³ And then, Dobbs elevated this entrenched species of traditionalism, alongside other key cases from the 2021–2022 and 2022–2023 Terms.²⁵⁴ But the meaning of a history-and-tradition test had, in fact, been a site of contestation for decades before the newly constituted conservative majority declared that “history and tradition” teaches that “what the Fourteenth Amendment means by the term ‘liberty’ . . . does not protect the right to an abortion.”²⁵⁵

III. REMAKING TRADITIONALISM

Recovering this lost approach to history and tradition is significant for three reasons. First, it sheds new light on old puzzles that have beset constitutional interpretation. These include charges of judicial activism and deep-rooted injustice, generality problems, and difficulties in differentiating between the traditionalist method and either “gloss” or “liquidation.” Second, a shared focus on longstanding and widespread practices promises to take the edge off interpretive divisions between the prevailing extremes of originalism and living constitutionalism, especially if looking to the way in which they have evolved over time. Third, distinguishing entrenched from evolving traditionalism provides a constructive way to clarify which rights merit constitutional recognition. The final Section details how these distinct approaches to traditionalism would go about analyzing a number of fundamental rights claims that the Supreme Court has already recognized (e.g., birth control, interracial marriage, medical refusal) as well as others that it hasn’t (e.g., assisted reproduction, aid-in-dying, gender-affirming care).

A. Doctrinal Puzzles

Traditionalism is criticized for being either too manipulable or too stuck in the past. These objections come from opposite directions. One casts this method of interpretation as so unmoored that it invites judicial activism. The other says it is so rigid that it entrenches injustice. The evolving approach to history and tradition proves less vulnerable to both criticisms than the entrenched version of that test. And there are a couple other doctrinal puzzles that evolving traditionalism makes meaningful progress on too. One relates to the levels-of-generality problem in determining the scope of constitutional rights and holdings. The other is about the complexities of distinguishing traditionalism from “gloss” or “liquidation.” The evolving kind of history and tradition isn’t immune to these challenges. But it fares better.

1. Activism and Calcification

The evolving test attracts charges of judicial activism because it doesn’t confine the inquiry to a preset timeframe in the distant past. And if a judge has more time periods to pick from, she has more discretion to pick and choose her favorite practices. But that analysis is still anchored in extra-judicial practices whose roots run deep. There’s no picking and choosing among isolated customs or fleeting fads—let alone freestanding normative principles or cost-benefit analyses. And this methodological point is critical: evolving history and tradition advises looking to the most recent among sufficiently longstanding practices. Accordingly, it offers the judge no wider variation than entrenched traditionalism.

Besides, fixing a traditionalist analysis on some earlier era isn’t determinate. It leaves ample space to exercise judicial discretion. For one, as Justice Amy Coney Barrett asked in the Bruen gun rights case, “How long after ratification may subsequent practice illuminate original public meaning?”²⁵⁶ The absence of any clear answer invites arbitrary line-drawing on either side. Adam Winkler catalogs the ways in which the Bruen “Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like,” dismissing “all of the historical precedents for heavy restrictions on concealed-carry laws as outliers,” “early English common law as too old,” and “laws that were adopted after the mid-eighteen-hundreds as too young.”²⁵⁷ Joseph Blocher and Reva Siegel give the name “asymmetric updating” to the danger that Second Amendment rights expand to include new kinds of weapons, while the government’s regulatory authority stays frozen in 1791 or 1868.²⁵⁸ Entrenched traditionalism is vulnerable to cherry-picked traditions and badly done history too, while the evolving test can find expression in tangible practices grounded in objective, empirical evidence.

When it comes to the problem of intransigence, entrenched traditionalism is susceptible to injustices that reach further back in our past. All that matters is that a practice was accepted at the relevant ratification era—its animating rationale or subsequent rejection escapes scrutiny.²⁵⁹ So does the way in which tradition is deployed: to uphold a law that’s consistent with longstanding practices, to strike one down because it is at odds with them, or to interpret a provision that was enacted precisely to abolish a persisting evil like slavery. Consider the 2021 case Brnovich v. Democratic National Committee,²⁶⁰ which read into the Voting Rights Act a presumption that any practice is valid that was “standard” when the Act was enacted in 1965, even if it operated to deny black voters the opportunities afforded to others.²⁶¹ Justice Elena Kagan dissented on the ground that the purpose of the statute was “to eradicate then-current discriminatory practices, not to set them in amber.”²⁶²

Obergefell, the 2015 case affirming a right to same-sex marriage, underscores the injustices in an entrenched appeal to traditionalism: “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”²⁶³ Evolving traditionalism combats the reflexive appeal to “what we have always done,” when our past embodies grave wrongs. Longitudinal analysis about historical practices leaves space to recognize the ways in which traditions tend to grow progressively fairer over time. There is no guarantee that “what we have done more recently” ever and always bends toward decency and fairness. It is possible that more recent traditions are not especially more likely to be just. Later generations can certainly make moral mistakes too. What an evolving test enables us to do is avoid reifying the transgressions that we can see clearly when looking back in the rearview mirror, so that at least those we won’t perpetuate indefinitely into the future.

That’s what persuaded the Massachusetts Supreme Judicial Court (the state’s highest) in a 2022 case to grant due process protections to medical aid-in-dying under the state constitution. The Court identified two methods of traditionalism that it referred to as narrow and comprehensive: “a fundamental right may be determined either through a narrow view of this nation’s history and traditions or through a more comprehensive approach, which uses ‘reasoned judgment’ to determine whether a right is fundamental.”²⁶⁴

The Massachusetts high court adopted the “comprehensive” approach whose consideration of “modern precedent alongside history” enabled the majority “to cleanse our substantive due process analysis of the bigotry that too often haunts our history.”²⁶⁵ Social practices occupy a relatively weak place in this “comprehensive” conception of history and tradition. It holds that practices are neither a necessary nor sufficient condition of interpretative meaning. Evolving traditionalism reserves a stronger role for social practices. They give a judge a source of legal authority to cite when she agrees with it but also constrain her when she does not.

2. Levels of Generality

Generality problems pervade constitutional, statutory, and common law.²⁶⁶ They boil down to the description of a law, provision, or case at a lower level of generality or a higher one—in other words, in terms that are either more particular, and so would accordingly apply to a narrower set of future facts or questions, or stated as an abstract matter, which has relevance to a wider range of legal issues.²⁶⁷ This framing can have a profound impact on a legal conclusion. In 1937, legal theorist Jerome Hall put the problem like this: “Upon the level of generality selected for the criteria of likeness or dissimilarity depends the outcome.”²⁶⁸

The generality problem we focus on is the level at which a rights claim is articulated before the court, or in the understanding of its holding. It is a debate that Laurence Tribe and Michael Dorf launched in 1990,²⁶⁹ the year after Justice Antonin Scalia suggested that courts select “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”²⁷⁰ The question is how specifically or generally to identify a “relevant tradition”—for example, as allowing adulterous fathers to interfere with families, or letting genetic parents visit the children they learned of their biological connection to only at some point after their birth.²⁷¹ Marc DeGirolami argues that empirical appeal to the fact of social practices itself might help to rein in the choice of level by limiting the range of plausible answers to those that find expression in practices that are especially pervasive and longstanding.²⁷²

Evolving traditionalism can help to gain traction on the levels-of-generality problem. Take Obergefell. America has long respected the general framing of a liberty interest in two people getting married in cases like Loving v. Virginia, which recognized rights of marriage rather than “interracial” marriage.²⁷³ But the same interest might also be characterized in terms of a more specific framing about same-sex couples specifically. The question is whether two decades of same-sex marriage recognition in a growing minority of states is enough to root a tradition deeply. The answer depends on which practices endure most when the lens of tradition is refracted from the ratification era into more recently longstanding practices. The Obergefell majority reasoned about history not as a limit but as a guide that’s “entrusted to future generations” to protect individual freedom in a manner that evolves “as we learn its meaning.”²⁷⁴

By contrast, the reconstituted Supreme Court majority in Dobbs adopted a low level of generality to define a specific right to abortion, as that practice had been entrenched under nineteenth-century state restrictions.²⁷⁵ An evolving traditionalism that accounted for battles over birth control and medical refusal would have advised a more general right of reproductive freedom or healthcare. Distinguishing entrenched from evolving traditionalism also guards against selectively favoring whichever level of generality suits a preferred outcome: for example, describing the types of “arms” covered by the Second Amendment right at a high level of generality to include weapons unknown to the founding era, while casting gun control regulations at a low level of generality that requires laws which closely resemble past practice.²⁷⁶

3. Gloss and Liquidation

Distinguishing the evolving from entrenched tests for history and tradition also sharpens the differences between traditionalism and similar-but-distinct interpretive methods: gloss and liquidation. Historical gloss traces back to the separation-of-powers landmark Steel Seizure Case,²⁷⁷ specifically to Justice Felix Frankfurter’s concurrence, detailing that permissible sources of presidential power include “the gloss which life has written upon them” through “a systematic, unbroken . . . practice.”²⁷⁸ Gloss is just one data point among others, so relevant practices feature less prominently than they do in traditionalist interpretation, where social practices take center stage.²⁷⁹

Historical gloss more closely resembles evolving history and tradition in its analysis of relevant actions and inactions over time.²⁸⁰ The biggest difference is that gloss considers only government practices.²⁸¹ The history-and-tradition test widens the focus to salient and “systematic” practices by non-state communities too. Beyond legal advocacy, this could include widely shared primary conduct by unorganized groups of individuals, such as the growing use of contraceptives even among Catholics, or cohabitation of the sort cited in Moore.²⁸² By contrast to gloss, evolving traditionalism qualifies a social practice as relevant to recognizing a constitutional right, or declining to recognize it, when lots of people have undertaken or abstained from that practice for a long time.

Liquidation also goes beyond constitutional text to set the scope of indeterminate provisions in light of how political branches, states, or the people apply them after they’re enacted.²⁸³ Federalist No. 37 says liquidation is necessary when and because a newly ratified rule is “more or less obscure and equivocal.”²⁸⁴ This method features elements of both the evolving and entrenched versions of traditionalism. Liquidation is evolving in its openness to amplification by post-ratification practices that boast longevity and adherence. But then it fixes the meaning of that gap in the text through a period of acquiescence to a particular view in a process known as settlement.²⁸⁵

William Baude argues that liquidation tends to be achieved by people of great stature, working at the nerve centers of political power.²⁸⁶ By contrast, traditionalism finds the development of tradition in sometimes small places. And an evolving brand of that test looks for uniformity in the practices that cash out constitutional meaning across space and time. Liquidation also closes off interpretation to the possibility of future revision, without especially worthy justification. Whereas evolving traditionalism counts any change in longstanding social practices as meaningful to rights recognition.

B. Common Ground

The prevailing constitutional theories tend to talk past each other. Originalism and living constitutionalism appeal not only to different eras, but also to disparate values and core commitments.²⁸⁷ It is not that there haven’t been rigorous scholarly efforts to engage the other side.²⁸⁸ And yet these camps now find themselves more polarized than ever. They’re at odds about the Constitution’s meaning in most of the hard cases, that is, whenever the document is vague, silent, or cannot be substantiated with reliable historical context.²⁸⁹ That’s when they part ways for good, for example, about the role of original meaning (or original intent or law or methods). An evolving form of traditionalism holds out hope for bridging this gap, offering interpretive opponents a more conciliatory set of first principles and shared vocabulary.²⁹⁰

Most originalists think the meaning of each constitutional provision was pretty much fixed at the time that provision was adopted. So, it might seem reasonable to think that most would be reluctant to embrace social practices that were entrenched long ago in lieu of ones whose durability and pervasiveness evolved more recently. But there are other originalist commitments too. One is that constitutional practice constrains judicial decision-making. And this would seem to counsel openness to the external restraint that longstanding history and tradition places on this method of interpretation. The promise is more modest than any easy compromise. It is just the chance to bring constitutional antagonists to the same table to engage in meaningful conversation.

The evolving approach to history and tradition can be understood as a particular variant of living constitutionalism, defined as the idea that the Constitution’s authoritative meaning can and should be responsive to changing values absent any formal change to Article V.²⁹¹ Evolving traditionalism anchors itself in the most recent among those lasting social practices that go back at least decades, whereas most forms of living constitutionalism impose no such check on their interpretations that are grounded in changing circumstances and values.

The difference between entrenched traditionalism and originalism is subtler. Solum and Barnett diagnose their resemblance when they ask why Dobbs and Bruen fix the focus of traditionalism on historical evidence about the prevalence of state legislation around the time of constitutional ratification in 1791 or 1868. Their answer invokes originalism: firearms and pregnancy restrictions lend insight into what the public would have understood the Second and Fourteenth Amendments to mean when it comes to gun and abortion rights.²⁹² Solum and Barnett are right to observe that entrenched traditionalism and original public meaning can rely on similar evidence, even often. What distinguishes them, however, is the self-conscious attention each pays either to concrete social practices (traditionalism) or to abstract textual construction (originalism).

As for the entrenched and evolving variations of the history-and-tradition test, each focuses on different eras, either around the time of constitutional ratification or else extending for wider windows before and after that era. But both share minimal agreement on the interpretive importance of especially meaningful social practices.²⁹³ Those pervasive and entrenched practices are their North Star and point of departure. This first principle is what Justice Harlan described in his Poe dissent as the “regard to what history teaches are the traditions from which [this country] developed as well as the traditions from which it broke.”²⁹⁴ Compared with the entrenched approach to history and tradition, evolving traditionalism boasts the advantage of not forever preserving status inequalities and other past injustices, even if it might still risk ratifying contemporary evils.²⁹⁵

1. Shared Vocabulary

Traditionalism supplies a shared vocabulary that replaces abstract moral principles or contested balancing tests with tangible practices as the basis of constitutional meaning. These conversations about social practices can be mediated most effectively when tradition is treated as “a living thing,” in Harlan’s words.²⁹⁶ Practices that stand the test of time can form a shared way of talking about these questions. Analyzing the entire historical spectrum of tradition from ratification to present day moves litigants and courts into a common arena by eliminating temporal bounds and inviting inquiry into why practices came into being and stuck around, thereby shoring up their staying power. Even the most enduring practices may be subject to disagreement about their social meaning or moral value.²⁹⁷ And yet, as Harlan put it, “a decision which builds on what has survived is likely to be sound.”²⁹⁸

Entrenched history-and-tradition tests lack clear answers to the question about just how far back to go or even reach ahead up to the present. This temporal uncertainty emerges in the trilogy itself. In Dobbs, the majority’s historical analysis extends from thirteenth-century British common law until Roe was decided on January 22, 1973.²⁹⁹ Whereas in Bruen, the Court focuses on eighteenth- and nineteenth-century practices,³⁰⁰ in Kennedy, the Court looks instead from the Constitution’s ratification through that of the Fourteenth Amendment.³⁰¹ It is not just the trilogy, either. In McDonald v. City of Chicago and Timbs v. Indiana—two cases that Dobbs cited as examples of the history-and-tradition analysis³⁰²—the time periods for analysis also differed: McDonald covered ratification-era common law until the early nineteenth century,³⁰³ while the examination of relevant social practices in Timbs started with British common law and went not only up to the ratification of the Fourteenth Amendment but all way through to the present.³⁰⁴

2. Constitutional Trimming

An evolving history-and-tradition test starts from the first principle of enduring social practices, from before ratification until the present. Its shared vocabulary of tangible actions and inactions seeks to split the difference between the polarized margins of original meaning and living constitutionalism.

Evolving traditionalism satisfies some (albeit not all) of the considerations that move originalists to be originalists, and that attracts living constitutionalists to living constitutionalism. For originalists, traditionalism curbs judicial discretion by appealing to the longstanding social practices of politically accountable actors or the people they represent. It satisfies the popular sovereignty motivations of originalism through finding expression of the people’s will in diffuse practices over time. Meanwhile, living constitutionalists will find much to like in how evolving history-and-tradition isn’t rigidly fixed to meanings from long-ago eras very different from our own—and how it accedes to social practices that have embedded more recently based on the ethical understandings those practices reflect.

Cass Sunstein casts traditionalist interpretation as forging a constitutional compromise that demands concessions from both originalists and living constitutionalists, an example of what he calls “trimming.”³⁰⁵

Confronted with a disagreement between themselves and their critics, trimmers might conclude not that the original understanding is determinative, but that it is entitled to consideration, and that when precedents do not cut the other way, originalism should be followed. For this reason, some trimmers might be inclined to accept a form of “soft originalism,” giving weight to the original understanding without being bound by it.³⁰⁶

Shedding the least compatible of this ideological baggage can facilitate more discursive engagement on a meaningful common ground. Steering this middle course can be seen as a Goldilocks kind of exercise. Nobody wants to be entirely rigid or entirely fluid. Being too rigid makes you stiff, intransigent, and uncompromising, whereas being too fluid leaves you unmoored, floating, and aimless. DeGirolami argues that traditionalist methodology habituates judges to strike the right balance by thinking “in preservationist and custodial terms, asking them to extend and renew long-lived practices in an ongoing argument about the political virtues they serve.”³⁰⁷ An evolving kind of history and tradition holds particular promise to mediate between the extremes of originalism and living constitutionalism.

C. Remaking Rights

Beyond theoretical debates over constitutional jurisprudence, distinguishing evolving from entrenched traditionalism impacts the practical recognition of fundamental rights in profound and sometimes surprising ways. Fidelity to entrenched traditionalism would call into question rights that are clearly established and rarely contested—medical refusal, interracial marriage, and birth control. On the other hand, evolving traditionalism would not necessarily recognize new rights like medical aid-in-dying, assisted reproduction, and gender-affirming care.

That more dynamic approach also invites the possibility of an evolving right to treatments that the medical profession recognizes as standard-of-care, such as abortion, birth control, in vitro fertilization (“IVF”), and honoring advance directives, including for people who are pregnant when they fall into an irreversible coma.³⁰⁸

An important caveat is in order: the ultimate outcomes of an evolving history-and-tradition test will of course remain complicated and contested. And limited space here doesn’t permit working out definitive answers, especially in contexts as hard as these. The conclusions in this final Section are accordingly preliminary and tentative. The goal is simply to spell out the plausible operation of evolving traditionalism to give a sense of how this interpretive method would apply in practice. We start with the trilogy of Dobbs, Bruen, and Kennedy.

1. Abortion, Guns, and God

Dobbs concludes that “a right to abortion is not deeply rooted in the Nation’s history and traditions,” noting that, by the late-nineteenth century, thirty states “prohibited abortion at all stages except to save the life of the mother.”³⁰⁹ But most historians agree that abortion was in fact legal and common for most of American history, at least in the early stages of pregnancy, while half of the states that Dobbs appealed to did not make abortion a crime at all, let alone one that was prosecuted.³¹⁰ Selective history aside, Dobbs doesn’t reckon with the salient circumstance that, during the civil war era, women were deprived of now-uncontroversial freedoms that range from voting to property ownership.³¹¹ A plurality had put it plainly in the Frontiero pregnancy discrimination case that was decided the same year as Roe: “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.”³¹²

An evolving traditionalism that extends beyond the age of coverture and disenfranchisement could find ample evidence of acquiescence in abortion. The Dobbs majority summarily dismisses the notion that even expanding the lens by another century to when Roe was decided in 1973 would provide social-practice support for a right to abortion. But the liberalization of abortion laws over that period makes it confusing to see how that pre-1973 state of affairs would not support a right to abortion. Nor does the majority even mention the fact of abortion practices that took place after 1973. One reason that Dobbs may have discounted post-1973 practices is that the Court’s intervention in Roe scrambled the signal, making it hard to read them off the public’s will. But the majority in Dobbs doesn’t say, or try to justify this move, beyond appealing to the incomplete history of traditionalism it misleadingly ascribes to Glucksberg.

On Bruen’s Second Amendment traditionalism too, the “definition of ‘arms’ is fixed according to its historical understanding,” yet “covers modern instruments that facilitate armed self-defense.”³¹³ Bruen looks into the nineteenth century, too, but dates the relevant firearm history back to the right of self-defense in the 1689 English Bill of Rights.³¹⁴ Beyond the right’s historic ties to state militias is the longstanding prevalence of trap-gun bans that reserved self-defense to one’s person—state legislation did not protect the use of firearms to defend one’s home or property.³¹⁵ The fixed-in-time account of traditionalism makes much of the gunpowder laws from the late-eighteenth century.³¹⁶

Only the evolving version of history and tradition can account for more recent kinds of gun control regulations. Consider the safe-storage laws enacted in the 1980s, designed to head off pervasive accidental gun deaths, and mass shootings or suicides by minors.³¹⁷ Yet, these are precisely the kinds of social practices that the entrenched traditionalism of Bruen closes its eyes to. There is a long history and tradition supporting Second Amendment rights. But lots of gun control measures that weren’t around in the nineteenth century have become extremely common for much of the twentieth, and not seriously contested until very recently.

In Kennedy, the Establishment Clause case, the Supreme Court again teaches that rights “must be interpreted by reference to historical practices . . . [that] faithfully reflec[t] the understanding of the Founding Fathers.”³¹⁸ Legislative prayers, school prayers, and Sunday observance laws are instructive.³¹⁹ Entrenched traditionalism finds considerable state intervention with religion in all three.³²⁰ There’s the revolutionary-era tradition of opening legislative sessions with prayers, dating back to the First Congress that hired a pastor to deliver them.³²¹ Then there are nineteenth-century norms of daily prayers and religious readings in public schools, accepted as a symbol of patriotic values and moral guidance to preserve a unified and peaceful society.³²² Also, Sunday closing laws were incorporated from the English common law during America’s founding for the purpose of observing Christian faith and facilitating church attendance.³²³

An evolving traditionalism might look very different. Deferring legislative prayers to outside clergy invites less risk of proselytizing or subtle coercion than the newer practice that has divided courts involving prayers led by lawmakers or other officials themselves.³²⁴ Public school prayer itself was held to violate the First Amendment in the 1962 landmark case of Engel v. Vitale.³²⁵ And Sunday closing laws have evolved to replace a religious purpose with a secular one to provide workers with a collective day of rest.³²⁶ Under an entrenched approach to history and tradition, ratification-era social practices deeply root all kinds of government involvement with religion. Only evolving traditionalism provides a determinate basis for rejecting such church/state entanglements.

2. Medical Refusal and Aid-in-Dying

The entrenched history-and-tradition test likely risks ruling out the uncontroversial right to medical refusal, while an evolving approach might not warrant recognition of aid-in-dying. In the 1989 Cruzan case, the Supreme Court recognized the right of competent persons to refuse unwanted medical interventions that extends to the denial of life-sustaining treatment.³²⁷ Cruzan itself appeals to the longstanding embrace of medical refusal in extrajudicial practices that include the common law tort principles governing informed consent and battery, state court landmarks, and state statutory law about vaccines, prisoners, children, and people with mental illness.³²⁸

Despite its rich lineage, the right to refuse life-sustaining treatment would fare poorly under the entrenched history-and-tradition test. When the Fourteenth Amendment was ratified in 1868, there were no ventilators or feeding tubes. The legal doctrine of informed consent itself wasn’t even invented until the twentieth century.³²⁹ Only a general freedom from nonconsensual touch was alive in the common law tort of battery. Neither would a right to assisted suicide be possible under an entrenched history-and-tradition test. It might not be under an evolving test either, at least not yet. The Model Penal Code barred assisted suicide well into the twentieth century.³³⁰ But the landscape has shifted in recent decades. Ten states have some form of legalized assisted suicide, whether legislatively or by voter initiative.³³¹

The scope of these practices remains partial and contested for now, even under the evolving test for history and tradition. But the pendulum is swinging. Evolving traditionalism would not have protected a right to assisted suicide in 1997, consistent with Glucksberg’s decision not to recognize that right. But if more and more states continue to codify a right to aid-in-dying under limited circumstances, that more adaptable history-and-tradition test could well protect that right some decades hence. That makes clear a significant implication of evolving traditionalism: depending on how prevailing social practices take shape, a future court applying this kind of history-and-tradition test could protect certain rights that a court today (or in the past) would and should say lack protection right now.

3. Birth Control, Sexual Intimacy, and Marriage

Justice Clarence Thomas, concurring in Dobbs, advocated “reconsider[ing] all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”³³² This Section considers the entrenched-versus-evolving implications of each in turn, starting with the Court’s 1965 decision in Griswold to affirm a privacy right to birth control.³³³ That right would readily be vindicated under the evolving history-and-tradition test. By the 1930s, the contraceptive movement was large and visible, with birth control clinics opened across the country in a rebranding of what had once been deemed an immoral device now labeled as standard medicine.³³⁴ Contraceptives were widely recognized as essential healthcare and a social norm, even before Griswold and Eisenstadt v. Baird legalized birth control nationwide.³³⁵ But the birth control right may be unlikely to find solicitude under the entrenched approach to history and tradition. As the Dobbs dissent noted, “the American legal landscape in the decades after the Civil War was littered with bans on contraceptive devices.”³³⁶

A right to same-sex intimacy finds ample support under an evolving account of history and tradition, before such rights received recognition in Lawrence.³³⁷ In the era after World War II, dozens of activist groups formed to support sexual minorities.³³⁸ By 1955, the American Law Institute’s Model Penal Code advocated repeal of the sodomy laws.³³⁹ And in 1969, the Stonewall uprising inspired the formation of more than a thousand gay rights organizations nationwide, including the Human Rights Campaign, the Gay Liberation Front, and the Gay and Lesbian Alliance Against Defamation.³⁴⁰ The gay rights movement grew stronger still after Bowers.³⁴¹ In the 1990s and 2000s, state courts struck down several anti-sodomy laws under the equal protection clauses of state constitutions,³⁴² and the handful of remaining bans were rarely enforced.³⁴³

Entrenched traditionalism may look less kindly on the same-sex marriage right that Obergefell recognized under the Equal Protection Clause of the Fourteenth Amendment.³⁴⁴ In the era around the Civil War, sexual orientation was not a suspect class, and marriage was understood as being less about love and companionship than about raising the kids you had, something reserved to a man and woman.³⁴⁵ An evolving history and tradition, by contrast, would account for recognition of same-sex marriage in states like Vermont and Massachusetts by the early 2000s,³⁴⁶ and at least the benefits of civil unions and domestic partnerships in thirty other states in the following decade.³⁴⁷

Slavery and racial subordination are among America’s longest-standing “histories and traditions.” The constitutional reset that was the Reconstruction Amendments left pervasive redlining and institutional segregation, which extended to laws forbidding people of different races from getting married.³⁴⁸ The Supreme Court held that anti-miscegenation laws violated equal protection under the law in the 1967 case of Loving v. Virginia.³⁴⁹

An entrenched account of history and tradition might turn up conflicting evidence.³⁵⁰ On the one hand, anti-miscegenation statutes were on the books at some point in thirty-eight states by the end of the nineteenth century, and in twenty-nine still by 1951.³⁵¹ On the other hand, some states had begun to repeal their interracial marriage bans even before the Fourteenth Amendment, while others rejected proposals to write miscegenation bans into their state constitutions.³⁵² Only an evolving approach could account for the fourteen states that had repealed their prohibitions on interracial marriage in the decade or so before Loving—and the fact that sixteen bans remained up until that judgment, including Alabama’s until 2000.³⁵³

4. Fetal Rights and Assisted Reproduction

For the pro-life movement, the next major campaign after the demise of Roe will be a fight for fetal personhood—recognition that a fetal person has rights to due process and equal protection—and quite likely, a conclusion that liberal abortion laws are unconstitutional.³⁵⁴ Scholars from John Finnis to Josh Craddock argue that, as a matter of original public meaning, the word “person” in the Fourteenth Amendment applies from the moment of fertilization.³⁵⁵ Personhood claims have also captured headlines in contexts beyond abortion. An Alabama case in early 2024 involved several couples who sued over the wrongful destruction of embryos they had created during fertility treatment in the hopes of using them to have children.³⁵⁶ In LePage v. Center for Reproductive Medicine, the couples pursued a number of legal theories, including a negligence claim against the fertility clinic. The Alabama Supreme Court vindicated their action for wrongful death on the ground that the state’s Wrongful Death of a Minor Act applied to “all unborn children, regardless of their location.”³⁵⁷

LePage had the effect of pausing IVF in the state, as providers and intermediaries involved in the practice feared that even inadvertently destroying an embryo could lead to serious legal liability.³⁵⁸ The decision did not resolve the constitutional status of fetal personhood, even for the purpose of state law. But Chief Justice Tom Clark gestured toward a possible broader ruling in a concurring opinion, writing that “all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”³⁵⁹ LePage made clear that recognizing personhood rights for the unborn would have implicated not just abortion but IVF as well. Conservative and progressive scholars have doubted originalist arguments for unborn personhood under the Fourteenth Amendment.³⁶⁰ At any rate, history and tradition may offer a more straightforward path to fetal personhood. Still, personhood proponents would struggle under an entrenched history-and-tradition test. For centuries, colonies, territories, and states allowed abortion before quickening, and British legal authorities dating back to Blackstone conferred the status of “natural persons” only after “an infant is able to stir in the mother’s womb.”³⁶¹ Even in the nineteenth century, when antiabortion doctors mobilized widely to criminalize abortion, no similar movement developed on behalf of fetal rights, whether at common law or under the Constitution.³⁶²

Surprisingly, an evolving history-and-tradition test would look kindlier on claims to fetal personhood. The 1960s is when a robust fetal rights movement began to take shape and forge a powerful political partnership with the Republican Party.³⁶³ A commitment to fetal rights, once dismissed as Catholic dogma, now holds sway among conservative evangelicals, Mormons, and some orthodox Jews.³⁶⁴ Support for fetal personhood has room to grow on the political right. Fetal rights still find too little support in social practices today, when polls show that the smallest fraction of the population approves of abortion bans early in pregnancy.³⁶⁵ So an evolving history-and-tradition test would not yet give champions of unborn personhood what they want. But history and tradition is their best bet in future constitutional struggles.

What of a right to assisted reproduction? IVF combines egg and sperm in a laboratory before testing the resulting embryo by implanting it into someone who can carry it to term. It is the most effective way to have biologically related kids for many single people, cancer patients, and infertile or same-sex couples.³⁶⁶ Many fear that this social practice will be forbidden if the law recognizes fetal personhood. In the nineteenth century, the notion of conceiving a child apart from sexual intercourse was far-fetched, let alone in some way that would make it possible to pick and choose certain aspects of offspring makeup before birth.³⁶⁷ IVF wasn’t invented until the late 1970s, and a right to access it fails under entrenched traditionalism.³⁶⁸ As early as 1897, the Catholic Church took a stand against any form of “artificial insemination.”³⁶⁹ Most physicians remained hostile to the idea of assisted reproduction during that time, while courts and commentators compared any use of donor sperm to adultery.³⁷⁰ A right to these and other forms of assisted reproduction would accordingly find next to no support under an entrenched form of traditionalism.

A right to assisted reproduction stands a better but still outside chance under the evolving test. Donor insemination has been relatively common since the 1930s and 1940s.³⁷¹ By 2018, a third of Americans either know someone who has used assisted reproductive technologies or have used it themselves.³⁷² Twenty-one states now require insurance coverage for infertility treatment, including fifteen that address IVF specifically.³⁷³ Over fifty percent of large employers (those with more than 20,000 employees) covered IVF in 2022, compared with only thirty-six percent in 2015.³⁷⁴ Still, a tradition favoring IVF access remains contested: federal legislation to enhance IVF access has stalled,³⁷⁵ and many patients live in states without IVF coverage or depend on state or federal Medicaid, which does not cover assisted reproductive technologies.³⁷⁶ Some antiabortion groups and their lawmakers in state legislatures frame IVF as lawless and immoral and have ambitions to restrict or ban it—an ambition that has become even clearer after LePage.³⁷⁷ A half-century of evidence doesn’t yet support a right to access IVF under the evolving-tradition test. But that may be changing.

5. Gender-Affirming Care and Conversion Therapy

The two history-and-tradition tests also have surprising implications for other due process claims. Two claims making headlines in the wake of state bans are conversion therapy and gender-affirming care. Parents have asserted due process rights to each form of medical treatment on behalf of their minor children—designed either to convert those youths’ sexual orientation from gay to straight, or to temporarily block puberty-related changes to breasts, muscle, and voice to buy time for adolescents who consistently identify as transgender to consider more permanent changes later in adulthood.³⁷⁸ The Supreme Court has held that the “interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests.”³⁷⁹ But the Court has also made clear that clinical decisions on their kids’ behalf must be weighed against the State’s own concern for the health and wellbeing of its vulnerable citizens.³⁸⁰ That leaves uncertain any rights claims by parents to access treatments for their children that the government has forbidden.³⁸¹

Entrenched traditionalism might look more favorably on parental rights to conversion therapy, notwithstanding overwhelming evidence that it harms the very children it purports to help. Conversion therapy traces to the Civil War era, when the medical profession widely regarded homosexuality as “either a criminal act or a medical problem, or both,”³⁸² and authorized parental attempts to “cure” it through invasive measures like lobotomy and castration that have since given way to hypnosis and talk therapy.³⁸³ Parental claims to gender-affirming treatments stand little chance under the entrenched history-and-tradition test. For one, hormones like estrogen and testosterone weren’t discovered until the 1920s and 1930s.³⁸⁴ That puberty blockers and cross-hormone therapy weren’t around when the Fourteenth Amendment was ratified is all the Sixth and Eleventh Circuit needed to conclude that “the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”³⁸⁵

Under an evolving test, parental claims to gender-affirming care could stand an outside chance, while conversion therapy does not. Conversion therapy peaked in popularity in the 1960s when electroconvulsive therapy became increasingly common and the American Psychiatric Association briefly defined homosexuality as a mental disorder from 1968 to 1973.³⁸⁶ But healthcare organizations have roundly rejected conversion therapy over the ensuing decades as clinical evidence made clear that it is more likely to harm than benefit those distressed by a conflict between their sexual desires and their faith or family—especially if it reflects a disparaging view of same-sex attraction that inspires self-hatred.³⁸⁷ About half of the fifty states now ban the practice.³⁸⁸

The evolution of hormone therapy to affirm gender in minors has taken a different path.³⁸⁹ Puberty-blocking injections and implants emerged with programs in the Netherlands in the early 2000s.³⁹⁰ In 2009, the Endocrine Society published guidelines recommending the use of puberty blockers for adolescents whose distress, experienced from persistently identifying with a gender that doesn’t match their bodies’ sex-based traits, is not alleviated through psychosocial counseling and behavioral support.³⁹¹ By 2014, thirty-two clinics in the United States offered this treatment alongside parental support, with that number rising to about sixty by 2022.³⁹² Until 2023, gender affirming care was routinely provided to qualifying minors in forty-six states.³⁹³ But the months since have now presented a serious challenge for any rights claims under the evolving history-and-tradition test: the flurry of recent bans have left gender-affirming care legal in only thirty-one states.³⁹⁴

CONCLUSION

In declaring that the Supreme Court has “long asked whether the right is ‘deeply rooted in [our] history and tradition,” Justice Alito wrote that a history-and-tradition test emerged to constrain a more freewheeling living constitutionalism.³⁹⁵ His story takes off the stage entirely the heady days of substantive due process in the 1960s and 1970s that helped to forge the Roe decision. A history-and-tradition test, in turn, emerged in the 1980s and 1990s as the Justices retreated from the excesses of earlier decades. As Alito tells it, Glucksberg required the Justices to “exercise the utmost care whenever . . . asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”³⁹⁶ In other areas of doctrine, the Court’s approach to history and tradition is different, but the common denominator is the same: to count, a tradition must be rooted in the ratification era. From there, it is timeless and unchanging.

This origin story is compelling. The problem is that it is not true: neither where the test came from nor what it is. For decades before Glucksberg, social movement contestation over the role of history and tradition had wrestled with the very meaning of that test. Progressive movements, at times, contended that the nation’s traditions evolved to include those once left out of old status hierarchies, and that any legitimate understanding of constitutional tradition included the present and recent past as much as it did Blackstone. Some of the Justices, in turn, came to define an evolving history-and-tradition test as a middle ground between a true living constitutionalism and a hidebound constitutionalism anchored only to one point in an imagined past.

Conservative movements, in turn, forged their own ideas of a history-and-tradition test, insisting that such an approach had always properly honored only traditions that reached back to the time of the nation’s founding—or before. Members of the conservative legal movement found this history-and-tradition test an effective way to bridge divides within an emerging coalition on the right; a way to reiterate shared commitments to judicial restraint while codifying deeply held beliefs and values on subjects from religious freedom to abortion.

Understanding the Court’s contemporary uses of history and tradition as the byproduct of social movement conflict reveals the other normative commitments that reliance on history and tradition disguises. Seeing it in historical context also calls into question the precedential pedigree the Dobbs Court claims for both its decision and its vision of traditionalism that overlooks a very different version of that test. And that one we have forgotten has profound implications for remaking the controversies of our time.

98 S. Cal. L. Rev. 1

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Dov Fox*

* Herzog Research Professor of Law, University of San Diego School of Law.

Mary Ziegler†

† Martin Luther King Jr. Professor of Law, University of California, Davis School of Law. Thanks for insights to Vic Amar, Niko Bowie, Joseph Blocher, Jud Campbell, Marc DeGirolami, Murray Dry, Sherif Girgis, Felipe Jiménez, Sally Gordon, Laura Kalman, Ken Kersch, Mike Ramsey, Eric Rueben, Stephen Sachs, Neil Siegel, Reva Siegel, and Aaron Tang. We are grateful to Sasha Nuñez and Liz Parker for editing support. Caroline Bulger, Jenna Gatto, Alyssa Guthrie, Emmanuela Kubari, Bailey Neal, Emily Serleth, and Joseph Wilhardt provided wonderful research assistance. We are grateful for expert edits and cite-checking to Charles Murphy, Jacob Karlin, and the staff of the Southern California Law Review.

Divided Agencies

December 2022April 2024Brian D. Feinstein* & Abby K. Wood†

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of civil servant opposition are legion. Move beyond headlines, however, and little is known about the impact of political divisions within agencies on their workaday functioning.

This Article presents the first comprehensive, empirical examination of the effects of intra-agency political dynamics on policymaking. Leveraging data on political preferences based on campaign donations, we identify “ideological scores” for both appointees and civil servants in dozens of agencies over thirty-four years—the first measure of the political gap between these two groups across agencies and time. We use these scores to examine how ideological divergence between appointees and civil servants affects regulatory activity.

We find that agencies with greater distance between these two groups—which we term “divided agencies”—may adopt a more cautious posture. They tend to extend the rulemaking process and allow consideration of late-filed comments. These features provide appointees with extra time to gather and digest comments from politically aligned outside experts. Divided agencies’ caution may extend to the completion of final rules, which—in some but not all models—tend to be less numerous. Remarkably, we find no evidence that divided agencies are any less successful in shepherding proposed rules to final status. That finding casts doubt on the claim that the longer rulemaking timeframes in these agencies are attributable to civil servants’ attempts to derail oppositional appointees’ initiatives. Instead, one possible interpretation is that divided agencies’ caution pays off.

These findings imply that, with agency heads oscillating between left and right based on the party in power, the generally more moderate civil service can serve as a ballast. Specifically, faced with appointees that may be responsive only to a bare electoral majority, the presence of oppositional civil servants may encourage regulatory caution and push decision-making away from the extremes—thus, paradoxically, moving policy toward the median voter.

Our findings also spotlight the critical role that the notice-and-comment process—which is often maligned as pretextual—can play in divided agencies. Generalist appointees face a principal-agent problem when crafting rules: their key source of necessary in-house expertise, civil servants, may be misaligned. In this circumstance, comments from outside allies can provide a check on civil servants’ work. That civil servants can play a promajoritarian, moderating role in divided agencies highlights the importance of preserving civil service protections—especially in today’s polarized political climate.

Introduction

Secretary of the Interior Ryan Zinke, who served during the Trump Administration, and John Morton, who helmed Immigration and Customs Enforcement (“ICE”) under President Obama, may not have much in common politically, but they do share one experience: they managed agencies in which approximately one-third of their workforce was estranged. A proponent of increasing industry access to public lands, Secretary Zinke believed he had “thirty [percent] of the crew that’s not loyal to the flag” concerning that goal.[1] He compared his situation to capturing “a prized ship at sea and only the captain”—that would be Secretary Zinke, incidentally, a former Navy SEAL—“and the first mate row over” to manage the captured crew.[2] In response, some Interior Department civil servants styled themselves “the disloyals,” printing T-shirts with that epithet.[3]

Director Morton faced a similar mutiny. After issuing a directive prioritizing deportations of people convicted of crimes and urging prosecutorial discretion in other cases,[4] the union representing nearly thirty-nine percent of ICE employees passed a no-confidence vote against Morton’s leadership.[5] That move was unprecedented.[6]

That other apostates can be found across the executive branch is unsurprising;[7] the conditions are ripe for such conflicts. Civil servants often hold differing views from appointees.[8] With only four thousand appointees atop a federal workforce of over two million[9]—many of whom hold job protections—the former group’s ability to supervise the latter will, by practical necessity, be incomplete. As political polarization grows and hardball tactics typically associated with electoral politics enter administrative agencies,[10] we expect that conflicts between appointees and civil servants will only increase.

In recent years, legal scholars have turned their attention to examining these inner workings of administrative agencies. For instance, some scholars posit that competing centers of power within agencies—civil servants and appointees, along with public participants—serve a checking function on each other’s power and thus mimic the more familiar constitutional separation of powers.[11] Others theorize about the policies produced by agencies that contain competing powers, some of which pull in majoritarian and others in countermajoritarian directions.[12]

Yet while the legislative consequences of political divisions among the branches of government are well studied,[13] relatively little empirical work analyzes the impact on policy of political divisions within agencies.[14] Empirically, political dynamics inside administrative agencies remain terra incognita in some important respects. How do agencies in which key subgroups are at loggerheads differ from agencies that are more politically cohesive? Do deeply divided agencies take longer to regulate, perhaps because of distrust or civil servant foot-dragging? Is White House review more exacting for these agencies, on the theory that White House officials are less likely to trust proposed rules emanating from ideologically divided entities? And do these agencies ultimately produce fewer rules?

This Article seeks answers to these questions. It examines how ideological differences between political appointees and civil servants affect the rulemaking process. These two groups share power within agencies, with generalist appointees relying on expert civil servants to implement the former group’s preferred policies. That division gives rise to a well-studied principal-agent problem: appointees must rely on civil servants who may have very different policy preferences and over whom appointees have limited ability to monitor or control.[15]

Faced with agents they may distrust, appointees may seek out and spend more time considering informed “second opinions” from other sources. These alternative sources of information include comments received during the notice-and-comment process, informal feedback from allies in Congress, and recommendations from advisory committees of outside experts occupying a privileged position within agencies. Indeed, public choice theorists posit that administrative structures and processes can serve just this purpose.[16]

We put this theory to the test, examining how appointees respond when their agents in the civil service hold differing views. To do so, we first develop a measure of ideological distance over time and within agencies so that we can identify divided agencies.

Existing measures are inadequate for that purpose,[17] so we create our own. We leverage a dataset on ideological preferences based on campaign donations to do so. We use these data to generate dynamic “ideal point” estimates for agency heads and civil servants in forty-seven agencies over thirty-four years—and thus, a new measure of the ideological gap between these two groups across agencies and time.[18] We then connect this measure to data concerning the rulemaking process.

Our results show that divided agencies—that is, those with ideologically opposed agency heads and civil servants—adopt a slower rulemaking posture than agencies that are more unified. Several of our findings suggest that greater caution may be at play. Once civil servants generate a proposed rule, appointees take their time. While we cannot rule out all alternative explanations, we observe that one feature of the delay is consideration of late-filed comments. Considering late-filed comments allows appointees to hear from a greater number of ideologically aligned outside groups as a check on civil servants’ work. Delay may also result from appointees spending additional time assessing those comments. In either case, slower rulemaking at divided agencies suggests that appointees may be utilizing rulemaking procedures to blunt civil servants’ informational advantages. Additionally, divided agencies may tend to issue fewer rules. That their rules are no less likely to become final, however, is perhaps evidence that their caution pays off.

This claimed cautious approach means that, whatever policy changes one desires in a first-best world, the reality of policymaking in divided agencies likely will leave one disappointed. Indeed, divided agencies are likely status quo-preserving. Whether this feature is normatively desirable turns, in part, on one’s risk aversion and the extent to which one values policy certainty.

Given that partisan polarization—and thus divided agencies—likely will persist into the foreseeable future, our findings provide a set of best practices for agencies to function as well as possible under these conditions. The policy implication that most closely follows from our findings is that officials must preserve the independence of the civil service. At a time when that independence is challenged, our findings about rulemaking suggest that civil servants comprise a moderating counterweight against more ideologically extreme appointees; thus, they serve as a bulwark against wild changes in regulatory policy. With agency leadership swinging between liberal and conservative poles, as we find, civil servants—who tend to be more moderate, albeit left of center—can pull agency policies toward the median voter. This moderation serves to improve democratic representation in agency policymaking: appointees are aligned with the Presidents who appoint them, and Presidents tend to be more ideologically extreme than the median voter. Allowing policy to swing all the way to their appointees’ preferences would therefore not reflect the public’s preferences. In contrast to common laments of employment-protected civil servants serving as a countermajoritarian force in policymaking, we show that they can serve a democratizing function in divided agencies.[19]

Further, to prevent divided agencies from descending into the gridlock and paralysis that plague other polarized institutions, appointees must have access to high-quality information from ideological allies, which we infer from divided agencies’ greater willingness to consider late-filed comments. We argue that the notice-and-comment process is well suited to transferring high-quality information to distrustful appointees. Notice-and-comment also may discourage civil servants, aware that their work will be “checked” by outsiders, from straying too far from their principals’ goals. Additional measures to inject diverse outside sources of information into agency decision-making could further enhance agencies’ ability to function, even in a challenging partisan climate within their walls—though they would increase resource costs associated with rulemaking.

This Article proceeds in four parts. Part I situates our study in twin literatures: empirical scholarship examining extra-agency influences on regulatory dynamics and descriptive and positive work concerning intra-agency dynamics. Part II presents our theory and expectations concerning the effects of appointee-civil servant preference divergence on regulatory processes and outputs. In Part III, we describe our research design, including our creation of an original dataset identifying appointees’ and civil servants’ political ideologies across agencies and time, and we present our analysis. Part IV discusses normative implications and offers policy prescriptions.

[1]. Evan Osnos, Trump vs. the “Deep State,” New Yorker (May 14, 2018), https://
http://www.newyorker.com/magazine/2018/05/21/trump-vs-the-deep-state [https://perma.cc/9862-ZBGM].

[2]. Matthew Daly, Interior Chief’s Loyalty Comments Draw Widespread Criticism, Associated Press (Sept. 26, 2017), https://apnews.com/article/8c3ae77664f44159823903b3add31e65 [https://
perma.cc/AN4H-W8N6].

[3]. Osnos, supra note 1.

[4]. Memorandum from John Morton, Dir., U.S. Immigr. & Customs Enf’t, to All Field Off. Dirs., All Special Agents in Charge, & All Chief Couns., U.S. Immigr. & Customs Enf’t (June 17, 2011), https://
http://www.ice.gov/doclib/foia/prosecutorial-discretion/certain-victims-witnesses-plaintiffs.pdf [https://perma.
cc/JM2G-ZSVX].

[5]. Ted Hesson, 7 Numbers that Tell the Story of an Immigration Boss’s Tenure, ABC News (June 17, 2013, 12:34 PM), https://abcnews.go.com/ABC_Univision/Politics/ice-director-john-mortons-
tenure-numbers/story?id=19422159 [https://perma.cc/W37D-R4QM]; see also Julia Preston, Single-Minded Mission to Block an Immigration Bill, N.Y. Times (June 1, 2013), https://www.nytimes
.com/2013/06/02/us/for-chris-crane-a-quest-to-block-an-immigration-bill.html [https://perma.cc/2ZLK-
TXUC] (providing figures used to calculate the union’s share of ICE’s workforce).

[6]. Preston, supra note 5.

[7]. See Osnos, supra note 1 (providing other examples).

[8]. See infra Part III.

[9]. Fiona Hill, Public Service and the Federal Government, Brookings (May 27, 2020), https://
http://www.brookings.edu/policy2020/votervital/public-service-and-the-federal-government [https://perma.cc/
JRK2-QYRM] (reporting the size of the federal nonmilitary, nonpostal workforce and the approximate number of political appointees).

[10]. See Brian D. Feinstein & M. Todd Henderson, Congress’s Commissioners: Former Hill Staffers at the S.E.C. and Other Independent Regulatory Commissions, 38 Yale J. on Regul. 175, 223, 226 (2021) (documenting these developments).

[11]. See Jon D. Michaels, Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers, 91 N.Y.U. L. Rev. 227, 238–39 (2016); Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 Emory L.J. 423, 425 (2009); Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2346 (2006).

[12]. See Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 Mich. L. Rev. 53, 72 (2008).

[13]. See generally Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006); Gary W. Cox & Mathew D. McCubbins, Setting the Agenda: Responsible Party Government in the U.S. House of Representatives (2005); John J. Coleman, Unified Government, Divided Government, and Party Responsiveness, 93 Am. Pol. Sci. Rev. 821 (1999); David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–2002 (2d ed. 2005).

[14]. But see generally Rachel Augustine Potter, Bending the Rules: Procedural Politicking in the Bureaucracy (2019); Rachel Augustine Potter, Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking, 79 J. Pol. 841 (2017) [hereinafter Potter, Slow-Rolling, Fast-Tracking]; Anne Joseph O’Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va. L. Rev. 889 (2008); George A. Krause, A Two-Way Street: The Institutional Dynamics of the Modern Administrative State (1999).

[15]. See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 243–44 (1987) (outlining this principal-agent problem).

[16]. See, e.g., id. at 255 (“[P]olitical principals in both branches of government suffer an informational disadvantage with respect to the bureaucracy. . . . [M]any of the provisions of the Administrative Procedures [sic] Act solve this asymmetric information problem.”).

[17]. For instance, measures based solely on the ideology of the appointing President fail to capture ideological differences in consecutive agency heads appointed by the same President. In other words, they do not capture enough variation over time. Other measures only occur sporadically in time.

[18]. The included executive agencies are the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs (operating as the Veterans Administration until 1989); Environmental Protection Agency; and Small Business Administration. The included independent agencies are the Agency for International Development, Civil Aeronautics Board (until its dissolution in 1985), Commodity Futures Trading Commission, Equal Employment Opportunity Commission, Farm Credit Administration, Federal Communications Commission, Federal Deposit Insurance Corporation, Federal Emergency Management Agency (until its subordination to the Department of Homeland Security in 2003), Federal Energy Regulatory Commission, Federal Housing Finance Agency, Federal Housing Finance Board (until its dissolution in 2009), Federal Labor Relations Authority, Federal Maritime Commission, Federal Reserve Board, Federal Trade Commission, General Services Administration, Interstate Commerce Commission (until its dissolution in 1996), National Aeronautics and Space Administration, National Archives and Records Administration, National Credit Union Administration, National Transportation Safety Board, Nuclear Regulatory Commission, Office of Federal Housing Enterprise Oversight (until its dissolution in 2009), Office of Personnel Management, Pension Benefit Guaranty Corporation, Securities and Exchange Commission, Social Security Administration, Surface Transportation Board, and U.S. Postal Service. Also, the Internal Revenue Service, although part of the Treasury Department, is included as a separate agency.

[19]. See Stephenson, supra note 12, at 72 (presenting a positive theory of this dynamic).

* Assistant Professor of Legal Studies and Business Ethics, the Wharton School of the University of Pennsylvania.

† Professor of Law, Political Science and Public Policy, University of Southern California Gould School of Law. We thank Adam Bonica, Devin Judge-Lord, and Rachel Potter for data, and Ming Hsu Chen, John Harrison, Erin Hartman, Kathryn Kovacs, Jeff Lubbers, Neysun Mahboubi, Jennifer Mascott, John McGinnis, Jon Michaels, David Noll, Anne Joseph O’Connell, Richard Pierce, Zach Price, Michael Rappaport, Noah Rosenblum, Amy Semet, Bijal Shah, Kevin Stack, Matthew Stephenson, Chris Walker, Dan Walters, Adam White, and participants at the Presidential Administration in a Polarized Era conference at the C. Boyden Gray Center for the Study of the Administrative State for helpful comments. The authors also gratefully acknowledge the Gray Center’s financial support of this research.

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Divided Agencies

Brian D. Feinstein* & Abby K. Wood†

Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically

The Social Context of the Law: A Critical Analysis of Reliance Interests in the Department of Homeland Security v. Regents of the University of California

Raquel Muñiz,* Maria Lewis,† Grace Cavanaugh‡ & Melissa Woolsey††

In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case.

Dimensional Disparate Treatment

Benjamin Eidelson*

The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s

Say Yes to Her Redress: A Two-Step Approach to Post-Divorce Embryo Disputes

Gabrielle Lipsitz*

INTRODUCTION I can’t believe Taylor Swift is about to turn 30 – she still looks so young! It’s strange to

Without Exception? The Ninth Circuit’s Evolving Stance on Nondebtor Releases in Chapter 11 Reorganizations

Caleb Downs*

INTRODUCTION Chapter 11 of the Bankruptcy Code (or the “Code”) allows a troubled business debtor the opportunity to restructure its

Designing Supreme Court Term Limits

May 2022May 2022Adam Chilton*, Daniel Epps†, Kyle Rozema‡ & Maya Sen††

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term-limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term-limits proposals would have shaped the Court if they had been in place over the last eighty years of American history. These simulations enable comparative assessments of term-limits proposals relative to each other and to the historical status quo of life tenure. Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited Justices immediately could complete the transition in just sixteen years, but proposals that wait until after the sitting Justices leave the Court to appoint term-limited Justices would take an average of fifty-two years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term-limits proposals would have reduced the amount of time with extreme imbalance by almost half.

* Professor of Law, University of Chicago Law School. J.D. 2013, Ph.D. 2013, A.M. 2012, Harvard University. M.A., B.A. Yale University, 2007.

† Treiman Professor of Law, Washington University in St. Louis. J.D. Harvard University 2008, A.B. Duke University 2004.

‡ Associate Professor of Law, Washington University in St. Louis. Ph.D., 2015, Cornell University. J.D. 2011, Washington University. B.S.E. 2008, Grand Valley State University.

†† Professor of Public Policy, Harvard Kennedy School. Ph.D. 2012, A.M. 2011, A.B. 2000, Harvard University. J.D. 2004, Stanford University. For helpful conversations and comments, we are grateful to Gabe Roth and participants at workshops at the University of Chicago Law School, Washington University School of Law, NYU Law School, and the American Law & Economics Association Annual Meeting.

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You’re fired: The Original meaning of Presidential Impeachment by ames C. Phillips* & John C. Yoo†

February 2022March 2022Southern California Law Review Admin

Article | Consitutional Law
You’re Fired: The Original Meaning of Presidential Impeachment
by James C. Phillips* & John C. Yoo†

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1191 (2021)

Keywords: Impeachment, Mueller Report, Federalist

In 2020, for just the third time in its history, the Senate conducted an impeachment trial of the President. While the 2020 case of President Donald Trump presented different facts than those of President Andrew Johnson in 1868 or President Bill Clinton in 1998, the Senate rendered the same verdict of acquittal. Initial investigations had probed whether President Trump or his campaign had coordinated with Russia to influence the 2016 elections, and then pursued the possibility of obstruction of the investigations themselves. But when the Justice Department decided that it could not indict a sitting President, Congress focused its inquiry on whether President Trump had withheld foreign aid from Ukraine until its leaders launched an investigation into his opponent in the 2020 election, then-former Vice President and current President Joseph Biden.

Whether Congress could constitutionally remove President Trump through impeachment raises questions as old as the Republic and facts as new as social media. The Constitution uses language to define the grounds for impeachment, such as “high Crimes and Misdemeanors,” that remains a mystery today. Does impeachment require a federal crime, or can it include abuses of power and obstruction of Congress? How would Congress define these “high Crimes and Misdemeanors” in a neutral way that would not deter future Presidents from invoking their legitimate authority or unduly place the executive under legislative control? Can Congress remove the President because of a good-faith disagreement over the scope of executive power or the meaning of the Constitution itself? Even if impeachment included noncriminal acts, does the Constitution require that the offenses rise to a level of seriousness that justify removal? President Trump’s case raised the further question whether Congress could remove the President for actions that had a plausible public interest, or whether the legislature need only find that the President had pursued personal interests as well. The 2020 trial finally asked whether impeachment provides the only remedy for presidential misconduct, or whether the Constitution provides other remedies.

This Article seeks to answer these questions by examining the original understanding of presidential impeachment. We undertake this analysis both because the Framers’ work formed the central basis for both the prosecution and defense cases during the President Trump’s first impeachment and because other guides to constitutional meaning are lacking. As the Supreme Court has decided that impeachment qualifies as a “political question” outside Article III’s case or controversy requirement,[1] these questions have no legal answers from traditional sources, such as judicial opinions. Practice also provides little help. The House of Representatives has impeached only two other Presidents in American history. In the wake of President Abraham Lincoln’s assassination, Republicans in Congress found their plans for a radical reconstruction of the South frustrated by the new President Andrew Johnson, a Southern Democrat who favored a more lenient peace.[2] In 1868, the House impeached President Andrew Johnson for conducting himself in office in a disgraceful, yet not illegal, manner. President Johnson broke prevalent norms by speaking directly to the people to lobby for legislation and attacking Congress as “traitors.” Congress responded by including an article of impeachment for his unacceptable rhetoric.[3] To strengthen their case, congressional Republicans made it a crime for the President to fire his cabinet officers without their consent—a law that the Supreme Court would later find an unconstitutional infringement of the President’s removal power.[4]

Exactly 130 years later, the House flexed its impeachment powers for only the second time in its history, but over the sordid and banal rather than the high and mighty. Rather than the reconstruction of the nation after a terrible Civil War, the impeachment of President Bill Clinton asked whether the President had committed perjury about his affair with a White House intern, Monica Lewinsky. The President had committed a crime, but the independent counsel, Kenneth Starr, concluded that the Justice Department could not indict a sitting President, much as it would almost two decades later. Instead, Starr referred the case to Congress to decide whether to take action. While the House impeached along a party-line vote, the Senate refused to convict, also on a close party-line vote. It seemed that President Clinton’s argument that he had only lied about sex and had not committed any harm to the nation on a par with treason or bribery, seemed to carry the day. But the partisan nature of the vote also suggested that impeachment and removal would become a test of party discipline, in that Presidents would likely survive so long as they could maintain the support of thirty-four Senators of their party.

A third President, Richard Nixon, likely would have faced impeachment and removal had he not resigned on August 9, 1974. Both a special counsel and the House had launched probes into a burglary of Democratic Party offices at the Watergate Hotel during the President’s reelection campaign. After the Supreme Court ordered President Nixon to obey a subpoena for White House tapes of meetings where the President had allegedly ordered the cover-up of the break-ins, the Judiciary Committee reported three articles of impeachment to the full House. President Nixon resigned before the House could vote but only after he had met with delegations of Republican congressmen who told him that he would likely lose the votes in Congress. While the committee had considered a wide variety of charges, such as bombing Cambodia without congressional authorization and tax cheating, in the end it recommended impeachment only for obstruction of the special counsel investigation, impeding the House’s probe, and for violating the individual rights of his political enemies through misuse of the CIA, FBI, and IRS. Unlike the Johnson and Clinton examples, however, President Nixon’s case never came to a vote in the House, not to mention a full trial in the Senate. It is difficult to conclude, therefore, that President Nixon’s resignation creates some kind of precedent in the way that the 1868 and 1998 examples might.

It is not even clear that the Nixon case or even the Johnson and Clinton impeachments should create any precedent, in a judicial sense, for Congress. In both the Johnson and Clinton cases, the Senate refused to convict. It could have found that the House had not “proved” its facts, though in both cases the facts seemed fairly clear. President Johnson had indeed fired his Secretary of War without the consent of Congress; President Clinton had lied to prosecutors in a deposition recorded on video. If the facts were proven, then the Senate must have acquitted because they did not amount to high crimes and misdemeanors as defined by the Constitution. But the Senate leaves behind no written opinion to explain its decision because it acts much as a jury in a criminal trial to solely determine conviction. Therefore, we can draw no firm legal precedents from these earlier impeachments.

A previous Senate, moreover, could not bind a future Senate to its interpretation of the constitutional standards on impeachment. One Congress generally cannot bind a future Congress; as with all three branches of government, Congress can simply undo any action by a past Congress by passing a repealing law or rule. The Senate that tried President Andrew Johnson may well have concluded that it should not remove a President for exercising the executive power to fire cabinet officers. It could have believed that the exercise of constitutional power could not qualify as a high crime or misdemeanor, or it could have thought the President had to actually violate federal criminal law. But the Reconstruction Senate never took a vote, issued an opinion, or enacted an internal rule that interpreted the standard for impeachment. Even if it had, a contemporary Senate could change any rule or opinion by majority vote, just as the Senate changed the filibuster rule to exclude judicial and cabinet appointments. Senators who wanted to follow the Johnson or Clinton impeachments as some sort of precedent would have to appeal to tradition, rather than any legal rule, to govern a Trump impeachment.

Without any legal precedents, or even any system of binding practice, the original understanding of the Constitution becomes magnified in importance. The Constitution does not provide for the trial or punishment of a sitting President by prosecutors or a regular court. Instead, the Impeachment Clause creates a means to remove “the President, Vice President, and all civil Officers of the United States.”[5] It vests the power to impeach in the House and specifies no vote requirement, so we have always assumed it occurs by majority vote. Impeachment amounts to an indictment in a criminal case, in which prosecutors decide they have enough evidence to bring a prosecution before a jury. Vesting the power in the House, rather than prosecutors or judges, could suggest that impeachment will not fall solely within the preserve of law, but will involve politics as well. Without any reading of the Impeachment Clauses based on legal authorities, Congress might allow politics to overwhelm law in its indictment and trial of Presidents. Then-House Minority Leader Gerald Ford, for example, defended the impeachment of Justice Douglas because “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”[6]

Our analysis reveals new sources of materials that make the first Trump impeachment more complex than presented in the trial, debates, and media commentary. Contrary to the claims of President Trump’s defense, we find that the Framers understood “high Crimes and Misdemeanors” to include conduct that went beyond the violation of federal criminal law. Such offenses could include abuse of power; but we also conclude that these acts had to inflict serious harm upon the nation. A President could commit a crime, but it would not impose sufficient injury upon the public to justify removal (as with the Clinton example). A President could also commit no crime, but his misconduct or negligence could so harm the nation as to justify removal from office. We also find that the Framers were so worried that Congress would turn impeachment toward partisan political purposes that they erected the two-thirds requirement for conviction to preserve executive independence. Instead of impeachment, the Framers expected that elections would provide the primary check on presidential misconduct.

This Article proceeds in three parts. Part I reviews the investigations into President Trump, his first impeachment and trial, and his acquittal. Part II uses both new and old techniques to recover the history of the drafting and ratification of the Constitution. We use computerized textual analysis—corpus linguistics—of British materials pre-dating the Constitution’s framing to analyze what those of the founding generation would have believed the phrase “high Crimes and Misdemeanors” meant. We then examine the drafting and ratification of the Constitution to understand how the Founders expected the Impeachment Clauses to work. Part III draws forth lessons from this history and applies them to the issues raised by the Trump impeachment.

* Assistant Professor of Law, Dale E. Fowler School of Law, Chapman University. We received helpful comments from Jesse Choper, who has now witnessed seventy-five percent of all presidential impeachments. The authors wish to thank Francis Adams, Min Soo Kim, Darwin Peng, David Song, and the research librarians at Chapman University’s Fowler School of Law for research assistance.

† Emanuel S. Heller Professor of Law, University of California at Berkeley Law School; Visiting Scholar, American Enterprise Institute; Visiting Fellow, Hoover Institution, Stanford University. Professor Yoo thanks the Thomas W. Smith Foundation for support.
[1]. Nixon v. United States, 506 U.S. 224, 253 (1993).

[2]. See Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 87 (1973).

[3]. Jeffrey K. Tulis, Impeachment in the Constitutional Order, in The Constitutional Presidency 229, 232 (Joseph M. Bessette & Jeffrey K. Tulis eds., 2009).

[4]. Myers v. United States, 272 U.S. 52, 176 (1926).

[5] U.S. Const. art. II, § 4.

[6]. Kenneth C. Davis, The History of American Impeachment, Smithsonian Mag. (June 12, 2017), https://www.smithsonianmag.com/history/what-you-need-know-about-impeachment-180963645 [https://perma.cc/56EW-YKLU].

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The Political Reality of Diversity Jurisdiction by Richard D. Freer

February 2022March 2022Southern California Law Review Admin

Article | Civil Procedure
The Political Reality of Diversity Jurisdiction
by Richard D. Freer*

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1083 (2021)

Keywords: Diversity Jurisdiction, Politics

Support for diversity of citizenship jurisdiction has ebbed and flowed.[1] From the 1960s through the 1980s, the prevailing wind blew strongly against it.[2] A determined group, led mostly by academics and federal appellate judges, spearheaded an effort to have Congress abolish the general form of federal subject matter jurisdiction.[3] These critics were confident that diversity jurisdiction had outlived its need, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts. Advances in travel and communication, critics asserted, had homogenized American culture and rid us of any reasonable fear of bias at the hands of local courts.[4] Abolishing diversity jurisdiction would free busy federal judges from the nettlesome requirement of divining and applying state law and allow them more time for limning and developing federal law.[5] The effort was so successful that the House of Representatives overwhelmingly passed a bill abolishing diversity jurisdiction in 1978.[6]

But that effort and another determined frontal assault on diversity jurisdiction in 1990 failed. Now, a generation and more later, one sees little support for abolishing diversity. Even as its place on the federal docket grows—now accounting for more than one-third of the civil cases filed in district courts—one does not find academics or federal judges urging that these state-law-based cases be taken from the federal court docket.[7] On the other hand, diversity is now becoming a topic of increasing scholarly interest. The current commentary, however, is focused mostly on rationalizing diversity doctrine, making it consistent with its presumed purpose, rather than on curtailing it.[8] The accepted wisdom seems to be that diversity jurisdiction is here to stay, but that it might be recalibrated here and there.

What accounts for diversity’s survival and apparent acceptance? In retrospect, those who sought to abolish diversity jurisdiction failed to appreciate three fundamental characteristics about diversity jurisdiction. These characteristics should not be overlooked in our new era; they should guide efforts to rationalize diversity doctrine.

First, critics failed to understand that diversity jurisdiction is not something to be considered in vacuo, as a freestanding grant of judicial authority. It is instead an integral part of the economic engine of interstate commerce. Its function, ultimately, is to support the policies underlying the commerce, full faith and credit, and privileges and immunities clauses of the Constitution.[9] One should alter the availability of diversity jurisdiction only after considering the impact of such a change on this broader constitutional mission.

Second, those who attempted to abolish diversity understated the policy bases for diversity jurisdiction. Though the traditional “bias rationale” was indeed fear of bias against out-of-state litigants in state courts, today diversity jurisdiction is more broadly grounded in at least two ways. One is subtle and based in jurisdictional legislation of 1875: that the fear backing diversity jurisdiction is not state-based bias, but region-based bias.[10] The other, an “efficiency rationale,” developed over time with the Supreme Court’s jurisprudence regarding the Fourteenth Amendment’s restriction on state-court personal jurisdiction. Specifically, it is that diversity jurisdiction facilitates efficient joinder in complex cases in ways that state courts (hemmed in by the Supreme Court’s restrictive interpretation of the Fourteenth Amendment) simply cannot.[11] This rationale led to a resurgence of jurisdictional grants based upon diversity jurisdiction in the early part of this century so that there are now more diversity-based grants of subject matter jurisdiction than ever before.

Third, those who attempted to abolish diversity failed to appreciate that jurisdiction is ultimately a political issue. Whatever the policy bases for diversity jurisdiction, Congress retains it because the practicing bar wants it. The point was demonstrated in 1978. After the House passed its bill to abolish diversity jurisdiction, the organized bar leapt into action and defeated the effort in the Senate.[12] Thus, even if critics can show that diversity jurisdiction has outlived its need, they cannot show that it has overstayed its welcome, at least not in the eyes of the politically powerful group that wants it and uses it.

These characteristics should guide any efforts to make sense of, to render consistent, the various threads of the diversity canon. In addition, these efforts should take into account two other considerations. One, that canon is the result of complex interactions between Congress, which passes jurisdictional statutes, and federal courts, which interpret them. The bench is understandably concerned about docket control and holds considerable power in shaping jurisdiction with that as one consideration. Two, a national legal culture has evolved over our 230 years of experience with diversity jurisdiction. That culture includes the dynamic of intersystemic federalism, by which the federal and state courts engage in an ongoing dialogue about the development of the substantive law and of civil procedure.

It is unlikely that Congress will ever abolish diversity jurisdiction. At most, the legislature will tinker with some aspect of diversity in an effort to ensure that the federal court caseload does not get out of hand. As long as we maintain a rough equilibrium between the practicing bar’s desire to retain diversity jurisdiction and the federal bench’s desire to keep caseloads manageable, the status quo is fine—as a matter of political reality.

* Charles Howard Candler Professor of Law, Emory University. I have benefited from discussions with Tom Arthur, Pat Borchers, Collin Freer, Peter Hay, Dan Klerman, Dale Larrimore, Jonathan Nash, Rafael Pardo, Martin Redish, Robert Schapiro, Joanna Shepherd, and Howard Wasserman, for which I am grateful. I am indebted to the participants of the Federal Diversity Jurisdiction Conference held by the Emory Center on Federalism and Intersystemic Governance, in particular to Brooke Coleman for her insightful review of the Article. I am also grateful to Crystal Lee of the Emory Law Library, who provided invaluable assistance in locating historical materials.

[1]. Congress granted diversity jurisdiction upon the federal trial courts in the original Judiciary Act of 1789. It did not confer general federal question jurisdiction until 1875. Thus, until 1875, diversity cases were the staple of the federal civil docket. In the late nineteenth century, increasing federal caseloads and invocation of diversity jurisdiction by corporations led to some calls for restriction. In the twentieth century, an increasing number of federal judges, including Justices Frankfurter and Jackson, and later Chief Justices Warren and Burger, attacked diversity jurisdiction as wasteful of federal judicial resources. The anti-diversity momentum gathered throughout the 1970s and peaked with the Report of the Federal Court Study Committee (“FCSC”) in 1990 [hereinafter Report, FCSC]. For an outstanding treatment of this history (from which the foregoing is gleaned), see James M. Underwood, The Late, Great Diversity Jurisdiction, 57 Case W. Rsrv. L. Rev. 179, 180–98 (2006). The Report, FCSC is discussed infra Section V.B.

[2]. The American Law Institute’s Study of the Division of Jurisdiction Between State and Federal Courts (1969) was particularly influential. The American Law Institute (“ALI”) undertook the study in response to a 1959 request by Chief Justice Warren. The study concluded that diversity jurisdiction should be curtailed for two general reasons: that local bias was less pronounced than in earlier years and that the limited resources of the federal courts would better be expended on federal question cases. See John W. Reed, The War on Diversity, 18 Int’l Soc’y Barristers Q. 291, 291–92 (1983) (“Over the past decade or more there have been strong pressures to abolish the diversity jurisdiction of the federal courts. . . . The attack on diversity jurisdiction has its most distinguished formulation in a major study sponsored by the American Law Institute.”).

[3]. By the “general form” of diversity jurisdiction, I mean cases invoking § 1332(a)(1). Technically, no one favors the total abolition of federal jurisdiction based on the diversity power. For instance, all support retaining federal interpleader jurisdiction, which is, of course, based upon the diversity power. And no one advocates curtailing alienage jurisdiction under § 1332(a)(2). This Article addresses efforts to abolish or to curtail significantly this general form of diversity jurisdiction. Throughout this Article, my references to diversity are to its general form.

[4]. Such arguments date to the late nineteenth century, with the assertion that the advent of steam and electric power, and the Civil War, had so unified the country as to justify abolition of diversity. Alfred Russell, Avoidable Causes of Delay and Uncertainty in Our Courts, 25 Am. L. Rev. 776, 795–96 (1891). Justice Frankfurter favored abolition in the 1920s, saying “the mobility of modern life has greatly weakened state attachments. Local prejudice has ever so much less to thrive on than it did when diversity jurisdiction was written into the Constitution.” Felix Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L.Q. 499, 521 (1928).

[5]. See, e.g., David Crump, The Case for Restricting Diversity Jurisdiction: The Undeveloped Arguments, from the Race to the Bottom to the Substitution Effect, 62 Me. L. Rev. 1, 5 (2010) (“[A]bolition [of diversity jurisdiction] would preserve a federal forum for those with federal claims.”); Larry Kramer, “The One-Eyed Are Kings”: Improving Congress’s Ability to Regulate the Use of Judicial Resources, 54 L. & Contemp. Probs. 73, 77 (1991) (discussing reducing federal court workload by “reduc[ing] the scope of federal jurisdiction by eliminating unimportant categories of cases so that judges can devote more time to the cases that remain”). Dean Kramer served as a reporter of the FCSC, which concluded that no case had a “weaker claim” on the federal court docket than diversity jurisdiction. See infra note 130.

[6]. H.R. 9622, 95th Cong. (1978) (proposing “to abolish diversity of citizenship as a basis of jurisdiction of Federal district courts”). The measure passed the House by a roll call vote of 266 to 133 on February 28, 1978.

[7]. The most recent calls for abolishing diversity jurisdiction appear to be Debra Lyn Bassett, The Hidden Bias in Diversity Jurisdiction, 81 Wash. U. L.Q. 119, 138–45 (2003) and Crump, supra note 5, at 22 (concluding that “[t]oday, more than ever, there are persuasive arguments for the abolition or retrenchment of the general diversity statute”). For discussion of Professor Bassett’s proposal, see infra note 176 and accompanying text.

[8]. Scott Dodson, Beyond Bias in Diversity Jurisdiction, 69 Duke L.J. 267, 309 (2019) (noting contemporary justification of diversity jurisdiction on efficiency grounds); Steven Gensler & Roger Michalski, The Million Dollar Diversity Docket, 47 BYU L. Rev. (forthcoming 2022) (studying a broad range of docket effects of increasing amount in controversy in diversity cases); Daniel E. Klerman & Jonathan R. Nash, Aligning Diversity Jurisdiction with Its Bias Rationale (2021) (unpublished manuscript on file with author) (calling for rationalization of diversity doctrine in line with its traditional bias rationale); Patrick Woolley, Diversity Jurisdiction and the Common-Law Scope of the Civil Action, 99 Wash. U. L. Rev. (forthcoming 2022) (asserting that diversity doctrine should be understood against the backdrop of common law joinder rules).

[9]. See infra Part I.

[10]. See infra Part II.

[11]. See infra Part III.

[12]. Indeed, the matter never came to a vote in the Senate. S. 2389, 95th Cong (1978). See Underwood, supra note 1, at 199 n.91.

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Time to Go Auer Separate Ways: Why the Bia Should not Say What the Law is by Tatum Rosenfeld

February 2022March 2022Southern California Law Review Admin

Note | Immigration Law
Time to Go Auer Separate Ways: Why the BIA Should Not Say What the Law is
by Tatum P. Rosenfeld*

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1279 (2021)

Keywords: Board of Immigration Appeals (“BIA”), Auer

Neither fully legislative nor fully judicial, federal administrative agencies are tasked with “policing the minutiae.”1 They codify and enforce the details of the regulatory scheme set out by Congress.2 Simply put, administrative agencies administer the law. Agency regulations, however, like other legal sources, can be ambiguous.3 Thus, interpretation is inevitably necessary either to confront a novel circumstance or to resolve an inherent semantic ambiguity. This then raises the question: Who should be called upon to resolve such ambiguities? The Supreme Court’s solution is to put agencies in charge. Auer deference says an agency’s interpretation of its own rule controls so long as it is not “plainly erroneous or inconsistent with the regulation.”4 In effect, after an agency promulgates a regulation, it then maintains the latitude to fill in the gaps by interpreting its own regulation.

The Court has offered no good reason why Auer, while reasonable in some situations, should be applied indiscriminately to all agencies. A multitude of federal agencies exist to effectuate policies touching on everything under the sun—including housing, education, social benefits, food, agriculture, commerce, health, and the environment—but there is one agency in particular whose special attributes suggest that it should not be treated the same as all the others. That is the agency in charge of immigration appeals. One might reasonably think deference, for example, to the Food and Drug Administration’s expert interpretation of what constitutes an “active moiety,” promotes a robust and efficient government necessary for modern complexities. It follows that such agencies deserve deference from a court that is less well versed in the expertise involved in rendering such a judgment. However, immigration presents an entirely different set of policy concerns.

This is because deference to the Board of Immigration Appeals (“BIA”) under Auer risks political manipulation at the expense of immigrants’ liberty and freedom. Nested under the Department of Justice (“DOJ”), and more specifically the Executive Office of Immigration Review (“EOIR”), the BIA and lower immigration courts operate as quasi-judicial bodies, specifically “prone to political manipulation because of their unique combination of structure, history, and function.”5 A “clarifing” interpretation by the BIA can dictate the scheme by which people are welcomed into or rejected from the United States. The BIA is the unsuspecting gatekeeper, capable of molding the rules by interpretation to advance an anti-immigrant political agenda. Auer, therefore, acts as another tool in the political toolbox to restrict immigration in what is already a labyrinth of proceedings, paperwork, and fear.

This Note argues that Auer deference, even in light of the Supreme Court’s recent clarification of the doctrine, is an inappropriate approach for courts to take when they review the BIA’s rulings. Because the BIA lacks political accountability while simultaneously commingling government powers, deference to the BIA undermines key constitutional principles, such as separation of powers and democracy. Such principles must be enhanced, rather than undermined, more than ever when there is a heightened threat to
liberty. Therefore, a close look is needed to determine whether Auer deference is warranted for an agency in which the very freedoms of immigrants are at stake. The problem actually goes even further. Even if federal courts decided to eschew deference to BIA interpretations, the courts’ own interpretations would still not be an adequate mechanism to protect immigrants from unjust results. With ever-growing caseloads, Article III judges are not equipped with the requisite resources, time, and experience with immigration laws to adjudicate thousands more life-altering decisions in a timely, just manner.6 Immigration matters deserve to be adjudicated with proper accountability and more formalistic separations of power than those that currently stand. To achieve this, immigration courts and the BIA should, as many others have suggested before, be reformulated as Article I legislative courts to best serve democratic and separation of powers purposes. Liberty for immigrants can be salvaged through fairer adjudications and independent interpretations that are more insulated from political manipulation and the polarized ideologies that waft in and out of power.

This Note proceeds as follows: Part I briefly details a background of the BIA, and a current understanding of Auer deference. This discussion includes Auer’s political implications, and how the Supreme Court chose not to overrule the doctrine in Kisor v. Wilkie. This Section then explores the relationship between Auer and the BIA, including why the BIA’s political vulnerability makes the agency particularly unfit for Auer deference. Certain appointees to this agency have been rewarded with a position as a board member by openly declaring their hostility to the very people who are the object of the agency’s mission, and whose fragile life prospects are in their hands. Ironically, this flips the partisan commitments normally seen in the world of administrative law as follows: Those who would classically support increasing agency discretion by according Auer deference should be worried about giving heightened power to the self-declared, anti-immigrant agenda pervading the BIA, while those who would classically resist excessive delegation and deference to agencies, because of their limited accountability, seek to endow the BIA with vast independence and partisan manipulation. Part II argues that even in the wake of Kisor v. Wilkie, deference to the BIA’s interpretations of immigration regulations presents a heightened threat to constitutional principles of separation of powers and democracy. Part III then provides a potential solution to the inadequacy of Auer deference and the judicial role in the realm of regulatory gap filling for immigration laws.

* Executive Development Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A., 2017, University of Michigan, Communications and Minor in Law, Justice & Social Change. I am so deeply grateful for my family and their unending support, especially my dad for always being my sounding board and biggest cheerleader. I want to thank Professor Rebecca L. Brown for her invaluable guidance and inspiring perspective in drafting this Note. And, thank you to the talented Southern California Law Review staff and editors for their thoughtful work throughout this publication process.

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Introduction

I. Substantive Accountability and the Constitution

II. Major Judicial Precedent (and a Glimpse at Executive Branch Precedent)

A. Government Speech Doctrine

B. Unitary Executive Theory

III. Contemporary Threats to Substantive Accountability

A. Unitary Executive Theory and Federal Investigations

B. Broader Attacks on the Civil Service: UE Theory and Government Speech Doctrine at Work

Unitary Executive Theory

Federal Employees and the First Amendment

The First Amendment and State and Local Employees

IV. Some Kernels of Hope

CONCLUSION

98 S. Cal. L. Rev. 1321

Introduction

I. The Politics of Fear

II. Doxing and Silencing

Conclusion

98 S. Cal. L. Rev. 1413

INTRODUCTION

I. SOCIAL MOVEMENT POLITICS

A. The Pre-History (and Tradition)

1. Holmes and Moody

2. Ozie Powell and Frank Palka (not Palko)

B. Post-War Family Planning

1. “Tradition is a living thing.”

2. Constitutional Updating

3. Privacy and Penumbras

C. Sex, Abortion, and Cohabitation

1. Catholics, Protestants, and Jews

2. From Poe to Roe

3. City of East Cleveland

II. FORGING A CONSERVATIVE LEGAL MOVEMENT

A. Coalition and Constitution-Making

1. The Federalist Society

2. The Rutherford Institute

B. From Michael H. to Casey

1. Integrating the New Christian Right

2. Alliance Defending Freedom

C. Evolving and Entrenched Traditionalism

1. The Battle in Glucksberg

2. From Lawrence to Obergefell

III. REMAKING TRADITIONALISM

A. Doctrinal Puzzles

1. Activism and Calcification

2. Levels of Generality

3. Gloss and Liquidation

B. Common Ground

1. Shared Vocabulary

2. Constitutional Trimming

C. Remaking Rights

1. Abortion, Guns, and God

2. Medical Refusal and Aid-in-Dying

3. Birth Control, Sexual Intimacy, and Marriage

4. Fetal Rights and Assisted Reproduction

5. Gender-Affirming Care and Conversion Therapy

CONCLUSION

98 S. Cal. L. Rev. 1