Supreme Court Archives – Southern California Law Review

Major Questions Avoidance and Anti-Avoidance

October 2025October 2025Daniel J. Hemel*

In recent years, the Supreme Court has articulated a new “major questions” doctrine that prescribes a heightened standard of judicial scrutiny for regulations that address questions of vast economic and political significance. This jurisprudential innovation incentivizes—indeed, practically invites—strategically minded agencies to engage in “major questions avoidance”: to modify their regulatory approaches in order to skirt the major questions doctrine’s consequences. This Article is the first to name the phenomenon of major questions avoidance and to develop a taxonomy of avoidance tactics. It identifies four broad categories of major questions avoidance: “slicing” a single rule into a series of smaller rules; “lumping” together regulations under different statutory authorities to achieve a common, far-reaching objective; “glossing” over a major rule in technocratic language that downplays its economic and political significance; and “bypassing” the rulemaking process via guidance documents, administrative adjudications, and enforcement actions. Agencies appear to be deploying various major questions avoidance tactics already—openly in some cases and subtly in others. Although each of these avoidance tactics is costly to pursue, agencies are likely to engage in major questions avoidance—at least some of the time—as long as the major questions doctrine remains a salient feature of the administrative law landscape.

The nascent phenomenon of major questions avoidance presents both normative and jurisprudential puzzles. Different normative theories of administrative state legitimacy lead to contrasting conclusions regarding the desirability of major questions avoidance. If major questions avoidance is a problem, courts could—in theory—try to solve it by developing new doctrines of “major questions anti-avoidance.” Yet these anti-avoidance doctrines will face their own set of logical and logistical challenges—challenges that underscore the limits of judicial power in the cat-and-mouse game between courts and strategically minded agencies. Ultimately, a clear conceptual mapping of major questions avoidance and anti-avoidance can shed new light not only on the major questions doctrine itself but also on the justifications for, constraints on, and adaptability of the modern administrative state.

Introduction

One of the first lessons that students learn in law school is the concept of “question size elasticity.” Law school instructors rarely (if ever) use the term “question size elasticity,” but they almost inevitably illustrate the concept starting on Day One. For example, when teaching Vosburg v. Putney,¹ the first case in many torts casebooks,² professors often divide the central question—whether intent to harm should be a required element of the tort of battery—into a series of sub-questions (for example, whether intent to harm should be a required element when the alleged battery occurs in a touch football game, or on a crowded subway, or—as in Vosburg—in a seventh-grade classroom).³ Going in the opposite direction, professors often show how a seemingly self-contained doctrinal question such as the question presented in Vosburg implicates much larger questions about the structure of society (for example, how to mediate between conflicting interests in economic efficiency and bodily autonomy). By the end of their 3L year, students may not remember the particulars of the cases that they read as 1Ls, but if they were paying even a modicum of attention, they will have learned how to slice a big question into lots of littler ones and how to transform a superficially small question into a much more expansive inquiry.

The concept of question size elasticity, applicable in many legal contexts,⁴ takes on particular relevance in the context of the “major questions” doctrine, possibly the most consequential new doctrine to emerge in U.S. administrative law so far this century.⁵ The doctrine—which prescribes a heightened standard of judicial scrutiny for agency rules that implicate questions of particular economic and political significance—played a central role in four blockbuster Supreme Court cases during the Biden presidency. These four decisions—in which the Court overturned a nearly nationwide eviction moratorium,⁶ struck down a COVID-19 vaccine mandate for more than 80 million U.S. workers,⁷ stripped the Environmental Protection Agency of authority to carry out its Clean Power Plan,⁸ and blocked the Department of Education from forgiving $430 billion in federal student debt⁹—affect broad swaths of the American population and American life.¹⁰ The doctrine continues to rear its head in dozens of lower court cases and is almost certain to return to the Supreme Court soon, likely leading to the invalidation of additional agency actions.¹¹

When applied to the major questions doctrine, the concept of question size elasticity generates a number of, well, major questions. First, as a predictive matter: if a major question can be split into a series of minor questions, will agencies seek to avoid the doctrine’s consequences by slicing what would otherwise be “major” rules into smaller bits and pieces? We might call this slicing method—along with other tactics to evade the major question doctrine’s reach—“major questions avoidance.” Second, as a normative matter: if some agencies do engage in major questions avoidance at least some of the time, should we, as citizens, applaud those agencies’ avoidance tactics? Put another way, is major questions avoidance a salutary phenomenon—either as a desirable “workaround”¹² to circumvent an otherwise undesirable doctrine or as exactly the sort of agency behavior that the major questions doctrine is supposed to incentivize? Or, to the contrary, is major questions avoidance a pernicious administrative tactic that agencies ought to eschew for the public good? And third, as a jurisprudential matter: to the extent that major questions avoidance is undesirable, how—if at all—should courts police the practice? Should courts construct a doctrine of major questions anti-avoidance in administrative law, just as courts have—for example—developed anti-avoidance doctrines to defend the integrity of federal tax law? And if so, what shape might a doctrine of major questions anti-avoidance take?

Rigorously thinking through the relationship between major questions avoidance and anti-avoidance can provide fresh perspectives on the major questions doctrine itself—and, more broadly, about the relationship between the judiciary and the administrative state. According to one view, well expressed by the legal scholar Blake Emerson, the Supreme Court’s invocation of the major questions doctrine “is not legal interpretation at all, but rather an exercise of raw political power.”¹³ In a similar vein, Josh Chafetz characterizes the major questions doctrine as a central element of what he calls “the new judicial power grab.”¹⁴ This Article—though agnostic about the desirability of the doctrine¹⁵—suggests another possible slant on the doctrine’s power implications. When we consider potential agency responses to the major questions doctrine—along with the enormous difficulties that courts will face in policing those workarounds—our takeaway may be that the doctrine, if a judicial power grab, is one with surprisingly infirm grip. In other words, the major questions doctrine—though cited by critics as a signal example of creeping “juristocracy”¹⁶—may, at the end of the day, reveal as much about judicial power’s limits as about its reach.

Part I of this Article provides a brief overview of the major questions doctrine and defines the concept of major questions avoidance. Part II considers whether, when, and why agencies may (or may not) choose to engage in major questions avoidance. Part III evaluates major questions avoidance from a normative perspective, showing how four different theories of the administrative state’s legitimacy lead to very different conclusions regarding major questions avoidance. Part IV looks forward to the next move in the chess game between agencies and courts, asking whether and how courts can construct a doctrine of major questions anti-avoidance. Along the way, the analysis highlights the difficulties that even an ideologically motivated judiciary will face if it seeks to prevent administrative agencies from resolving questions of vast economic and political significance.

I. The Major Questions Doctrine and Major Questions Avoidance

A. The Major Questions Doctrine(s)

For years, a popular parlor game among administrative law scholars involved counting the number of Chevron steps. As formulated by Justice Stevens in the 1984 case that gave the Chevron doctrine its name, judicial review of agency statutory interpretation is a two-step process: is the statute ambiguous (Step One) and, if so, has the agency adopted a “permissible construction of the statute” (Step Two)?¹⁷ Thomas Merrill and Kristin Hickman later argued that in practice, an additional step precedes Steps One and Two—Chevron “Step Zero”—at which courts determine whether an agency’s statutory interpretation is even eligible for Chevron deference.¹⁸ William Jordan interpreted the Supreme Court’s decision in United States v. Mead Corp.¹⁹ as “erect[ing] a new four step test to replace what we once knew as the Chevron two step.”²⁰ Matthew Stephenson and Adrian Vermeule responded with an article provocatively titled: “Chevron Has Only One Step.”²¹ Aaron Nielson and I argued that courts have created a half-step between Steps One and Two—what we called “Chevron Step One-and-a-Half.”²² Judges got in on the Chevron step-counting exercise, too.²³ Much fun was had by all.

With the Chevron doctrine now dead²⁴—or at least, “mostly dead”²⁵—counting the versions of the major questions doctrine is the newest administrative law numbers game. Cass Sunstein has argued that there are actually two major questions doctrines.²⁶ Jody Freeman and Matthew Stephenson count three different iterations.²⁷ Louis Capozzi writes that after West Virginia v. EPA, the 2022 Clean Power Plan case, “[t]here is one version of the major questions doctrine” still standing.²⁸

In all of its iterations, the major questions doctrine applies more searching judicial review to “agency decisions of vast ‘economic and political significance.’ ”²⁹ The various versions of the major questions doctrine differ in what that more searching review entails. In one version, the “majorness” of an agency’s assertion of statutory authority is a factor weighing against that reading.³⁰ This version of the major questions doctrine evokes Justice Scalia’s statement that Congress “does not . . . hide elephants in mouseholes”³¹—that an interpretation of a statute is less plausible if it ascribes extraordinary consequences to “vague terms or ancillary provisions.”³² In a second version, the majorness of an agency decision was a reason for courts to deny Chevron deference and interpret the relevant statute de novo. This version³³—which was on clearest display in the Supreme Court’s 2015 King v. Burwell decision³⁴—faces an uncertain future in a post-Chevron world.³⁵ In a third version, majorness is a reason to reject an agency’s interpretation of a statute unless Congress has issued a “clear statement” authorizing the agency’s assertion of power.³⁶ Freeman and Stephenson describe this third, “most aggressive” version of the major questions doctrine as a “novel judicial innovation” that had not been embraced by the Supreme Court until West Virginia v. EPA in 2022.³⁷

All of these versions require courts to somehow distinguish major questions from minor ones. None of the Supreme Court’s cases give concrete guidance on the ingredients of majorness, though they do provide potentially instructive examples. In cases where it has found a question to be major, the Court has cited—among other factors—the population of people affected,³⁸ the amount of money at stake,³⁹ the rule’s geographic reach,⁴⁰ and the number of sectors that could be affected by the agency’s interpretation.⁴¹ Other factors cited by the Court in major questions cases include whether the

rule finds precedent in past agency practice⁴² and whether the rule lies within the agency’s “sphere of expertise.”⁴³

The emphasis in major questions cases on the scope of the challenged regulation raises a possibility that scholarship has only begun to probe: if the majorness of an agency interpretation depends, in part, on the number of people, industries, or regions affected by the relevant rule or by the rule’s dollar-denominated costs, can an agency duck the major questions doctrine by slicing a larger rule into smaller bits and pieces?⁴⁴ Although the Court has never stipulated a specific population threshold, dollar threshold, or other numerical criterion for majorness, its major questions cases so far indicate—and common sense would suggest as well—that smaller-in-scope rules are less major than larger rules. And in the major questions doctrine era, rules that do not implicate the major questions doctrine would seem to have a better chance of surviving judicial scrutiny than rules that do.

B. Major Questions Avoidance

Just as the major questions doctrine comes in multiple flavors, major questions avoidance does too. Broadly, “major questions avoidance” refers to any tactic by which an agency changes the form or substance of its regulations in order to avoid the application of the major questions doctrine while achieving similar—though not necessarily identical—results. We can divide the broad category of major questions avoidance into at least four subcategories: “slicing,” “lumping,”⁴⁵ “glossing,” and “bypassing.” This Section considers each in turn.

“Slicing”

“Slicing” refers to a type of major questions avoidance in which an agency divides a larger rule into several smaller ones. For example, when the Centers for Disease Control and Prevention (“CDC”) restricted evictions during the COVID-19 crisis, the agency engaged in a form of temporal slicing: it issued a series of time-limited eviction prohibitions with durations of one,⁴⁶ two,⁴⁷ three,⁴⁸ and four⁴⁹ months. It was only after the fifth iteration of the CDC’s moratorium that the Supreme Court struck down the agency’s action, stating that “the sheer scope of the CDC’s claimed authority” required a clear authorization from Congress.⁵⁰

Time is not the only dimension along which agencies might “slice.” Agencies also might slice geographically. For example, instead of issuing a single rule for the entire country, the CDC could have promulgated a series of geographically limited, temporally overlapping moratoria with a combined effect approaching—if not equaling—a nationwide rule.⁵¹ Alternatively, agencies might slice by industry. For example, the Occupational Safety and Health Administration—instead of issuing a vaccination and testing rule for nearly all private employers with at least one hundred employees⁵²—could have issued a series of industry-specific rules that, in the aggregate, reach most or all sectors of the economy. The Environmental Protection Agency (“EPA”) arguably engaged in a form of industry slicing in early 2024 when it split its greenhouse gas emissions limits for existing coal-fired and natural gas-fired power plants into two rules—proceeding immediately with the rule for existing coal plants while stating that it would delay the rule for existing gas plants for at least several more months.⁵³

Slicing can theoretically result in total or partial avoidance of the major questions doctrine. Imagine, for example, that an agency wishes to apply a single rule, R, to twenty-six industries labeled A through Z. Total avoidance would occur if the agency issues twenty-six identical versions of rule R, each for a single industry, and all pursuant to the same statutory authority. Partial avoidance could occur if the agency modifies the rule for each industry such that rule R_a applies to industry A, R_b applies to industry B, and so on, all the way through R_z for industry Z, where all of these industry-specific rules are substantively similar but none are carbon copies of each other. Partial avoidance also might occur if the agency applies rule R to some subset of industries—perhaps to A, C, and E but not B, D, and F—with the upshot that a large slice but not all of the economy is covered by R. Thus, partial avoidance allows an agency to achieve much of—though not all of—what it would have sought to achieve in the absence of the major questions doctrine.

Concededly, the slicing subcategory is blurry around the edges. At what point does an agency’s response to the major questions doctrine cease to be “avoidance via slicing” and simply become a downsizing of the relevant rule? For example, if an agency wishes to impose rule R on industries A through Z but—fearing the major questions doctrine—settles on applying rule R to industry A alone, then the agency has not “avoided” the major questions doctrine at all; the agency has been thwarted. There is no clear line between A and Z at which frustration turns into partial avoidance. In this respect, major questions avoidance is as fuzzy as the majorness element of the major questions doctrine itself.

Even though slicing—at least when it results in partial avoidance—may be difficult to distinguish from frustration, slicing still can be a useful concept. For our purposes, “slicing” occurs when an agency issues a series of narrower rules pursuant to the same statutory authority. As we shall see, this feature—multiple rules pursuant to the same authority—serves to distinguish slicing from its closest cousin: “lumping.” The import of the distinction between slicing and lumping—though it may seem pedantic at this juncture—will become clearer when we consider potential judicial countertactics in Part IV.

“Lumping”

“Lumping” refers to a type of major questions avoidance in which an agency promulgates multiple rules pursuant to different statutory authorities to reproduce the effect of a single rule that, if it had been issued on its own, would or could have implicated the major questions doctrine. In other words, the agency “lumps” together several different regulations under different statutory delegations to achieve a common policy goal that—if pursued in a single rule under a single statutory authority—would have risen to the level of majorness. Lumping, as we will see, is a strategy that agencies undoubtedly pursued to circumvent the major questions doctrine under the Biden administration. Whether it will continue under the second Trump administration is—as of this writing in early 2025—not yet clear, as all except the most obvious cases of lumping will be very difficult to detect.

The clearest example of lumping from the Biden years is the Department of Education’s response to the Supreme Court decision to block the cancellation of $430 billion in student loan debt.⁵⁴ In its first stab at large-scale debt cancellation—the effort thwarted by the Court’s 2023 decision—the department relied on language in the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES Act”) authorizing the Secretary of Education to “waive or modify” the provisions of several federal student loan programs in order to protect recipients from the financial consequences of a “national emergency.”⁵⁵ The Department of Education argued that the COVID-19 pandemic—undoubtedly a national emergency—justified the invocation of its HEROES Act authority. Invoking the major questions doctrine, the Court held that “[h]owever broad the meaning of ‘waive or modify,’ that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.”⁵⁶

Thwarted in its effort to use the Department of Education’s “waive or modify” authority under the HEROES Act, the Biden administration vowed to find other statutory means of relieving student debt.⁵⁷ Just eleven months after the Supreme Court’s ruling, the administration announced that without relying on the HEROES Act, it had successfully canceled $167 billion in student debt for 4.75 million borrowers through a series of smaller rules under different statutory authorities.⁵⁸ Furthermore, the administration averred, there were still additional loan forgiveness measures to come. “President Biden will not stop fighting to cancel more student debt for as many Americans as possible,” the White House declared.⁵⁹ (Some of those measures were subsequently blocked by the Eighth Circuit.)⁶⁰

The Biden administration’s response to the Court’s Clean Power Plan decision offers a somewhat less overt example of major questions avoidance. Promulgated under President Obama and then rescinded during President Trump’s first term, the Clean Power Plan leveraged the EPA’s authority under section 111 of the Clean Air Act to set emissions standards at the level achievable through the “best system of emission reduction” that has been satisfactorily demonstrated.⁶¹ The EPA interpreted that language to authorize it to prescribe “generation shifting”: the nation’s electricity grids would be required to replace high-emitting coal plants with increased electricity generation from natural gas plants and renewable sources such as wind and solar.⁶² The “best system,” in other words, involved taking coal plants out of commission and substituting cleaner energy. The Court in West Virginia v. EPA rejected that reading of the statute: “As a matter of ‘definitional possibilities,’ generation shifting can be described as a ‘system,’ ” Chief Justice Roberts wrote for the Court, but “a vague statutory grant is not close to the sort of clear authorization required by our precedents” for a rule as “major” as the EPA’s.⁶³

In the wake of the West Virginia decision, the Biden administration—which had never actually tried to reinstate the Obama administration’s Clean Power Plan—pursued a series of coal-related rulemakings that did not rely on its predecessor’s contentious reading of section 111 as allowing “generation shifting.” These efforts culminated in April 2024 when the EPA Administrator announced a “suite of final rules” to reduce coal power plant emissions.⁶⁴ One of these rules, mentioned above in the context of slicing,⁶⁵ requires existing coal power plants to install carbon capture and storage systems—a more traditional interpretation of the “best system” language in section 111 than the Clean Power Plan.⁶⁶ A second rule, promulgated under section 112 of the Clean Air Act rather than section 111, sets new limits on emissions of mercury and other air toxics from coal facilities.⁶⁷ A third rule relies on the EPA’s authority under an entirely different statute—the Clean Water Act—to impose more stringent restrictions on water discharges from coal plants.⁶⁸ “Taken together,” observed a New York Times news analysis, “the regulations could deliver a death blow in the United States to coal.”⁶⁹ Put another way, the suite of regulations seeks to accomplish the same ultimate goal that the Clean Power Plan pursued: to force a shift away from coal and toward cleaner energy sources across the U.S. electric grid.⁷⁰

One factor that distinguishes the coal case from the student loan case is that in the student loan case, we know that the Department of Education adopted its lumping strategy in response to the major questions doctrine. We know that because the Department of Education tried to implement its student debt cancellation plan pursuant to the HEROES Act and then shifted to other statutory authorities only after the Supreme Court blocked the HEROES Act effort on major questions grounds. In the coal case, by contrast, we do not know whether, in the absence of the West Virginia decision, the Biden administration EPA would have updated its predecessor’s Clean Power Plan—adopting the same reading of section 111 as authorizing generation shifting—or whether in the first instance the Biden EPA would have promulgated a potpourri of rules under both the Clean Air Act and the Clean Water Act. What we can say is that when the major questions doctrine foreclosed one possible regulatory approach to coal, the Biden administration chose another.

As examples of lumping, the series of student debt cancellations and coal-focused EPA rules are arguably more alike than different. What makes them alike—and different from many other potential cases of lumping—is that they came after, not in anticipation of, a court ruling that blocked an alternate regulatory route on major questions grounds. In other cases, major questions avoidance via lumping may occur more subtly. One or more agencies may issue a series of rules in service of a common goal without first trying and failing to achieve the same objective through a larger rule pursuant to a single statutory authority. We might never know whether this series of rules reflects major questions avoidance because we cannot observe the counterfactual world without the major questions doctrine hanging overhead. Even the administration officials involved in the decision to pursue the series of rules might not be able to say definitively that the strategy reflects major questions avoidance: fear of the major questions doctrine may have been one among several factors favoring the more incremental approach, and no single policymaker may know for sure whether the major questions doctrine was outcome-determinative.

This last point regarding the difficulty of detecting lumping will become particularly significant to the analysis in Part IV, when we consider whether the courts can combat avoidance through a doctrine of major questions anti-avoidance. If major questions avoidance is difficult to detect, it also may be difficult to deter. Thus, while lumping may be a less obvious example of avoidance than slicing, the non-obviousness of lumping may turn out to be exactly what makes it such an effective avoidance strategy.

“Glossing”

Whereas slicing and lumping entail changes to the scope and substance of agency regulations, “glossing” affects rules only on the surface. Glossing occurs when agency officials or others within the administration describe a rule in terms tailored to downplay its majorness. Even before the Court’s quartet of major questions decisions starting in 2021, Blake Emerson observed that the major questions doctrine alters agencies’ rhetorical incentives. “Because the doctrine generally forbids agencies from making decisions of great economic and political significance,” Emerson wrote, “it encourages agencies to explain themselves in technocratic terms, even if significant questions of value are at issue.” Emerson added: “If agencies know that courts will decline to defer to them if they detect agency consideration of important questions of political value, they will invariably explain their interpretations of statutory ambiguities in a way that makes them appear purely technical.”⁷¹ They will, to use this Article’s terminology, “gloss.”

Although glossing is a potential response to the major questions doctrine, it may not be—as Emerson suggests—an “invariabl[e]” response. Jody Freeman and Matthew Stephenson agree with Emerson that “executive branch lawyers might well start advising agencies to make their rules seem smaller in scope, more incremental, and more technocratic, and suggesting that the President, agency ofﬁcials, and other supporters avoid talking about how these rules contribute to some larger policy agenda or help address some big national problem.”⁷² But Freeman and Stephenson add that “this advice goes against the grain, since most political appointees are eager to tout their regulatory accomplishments, and presidents want to demonstrate strong leadership by publicizing and claiming credit for what their agencies are doing.”⁷³ Whether the litigation-driven incentive to gloss will outweigh the political incentive to trumpet the majorness of a regulatory initiative may depend on—among other factors—the distance to the next election, the relative influence of an agency’s general counsel vis-à-vis other officials, and the career ambitions of the agency head who promulgates the relevant rule.

So far, we have seen some examples of glossing and some examples of administration officials issuing statements that defy the rhetorical incentives generated by the major questions doctrine. As a possible example of glossing, then-CDC Director Rochelle Walensky said on National Public Radio in August 2021—when announcing an additional two-month extension of the agency’s eviction moratorium—that the “new, tailored order” was focused specifically on “areas of highest transmission” that faced the “most public health challenges.”⁷⁴ In fact, the August 2021 moratorium—though slightly narrower in geographic scope than the previous nationwide eviction prohibition—still covered ninety percent of the U.S. population.⁷⁵ President Biden’s unbridled celebration of his administration’s student debt forgiveness efforts offers a contrary example of “anti-glossing”: an administration official—here, the highest-ranking administration official—explicitly emphasizing that an agency initiative represents an end–run around the major questions doctrine. “[T]he Supreme Court blocked us,” President Biden told an audience at a college in Wisconsin in May 2024, but “that didn’t stop us. . . . We continue to find alternative paths to reduce student debt payments . . . that are not challengeable.”⁷⁶ Republican Attorneys General from seven states did, indeed, seek to block those “alternative paths,” alleging that the Biden administration’s approach still violated the major questions doctrine.⁷⁷ And as noted, that challenge succeeded in delaying some—though not all—of the Biden administration’s student debt relief measures.⁷⁸

“Bypassing”

A fourth form of major questions anti-avoidance is “bypassing,” whereby an agency sidesteps the rulemaking process altogether by pursuing its objectives through guidance documents, administrative adjudications, or enforcement actions. I borrow the “bypass” label from Jennifer Nou, who applies it in a different context to refer to similar tactics—including guidance, adjudication, and enforcement—that agencies use to insulate themselves from review by the Office of Information and Regulatory Affairs within the White House Office of Management and Budget.⁷⁹ Here, the impetus to use guidance documents, adjudications, and enforcement actions is not to escape White House review but to reduce the probability that judicial review will result in invalidation under the major questions doctrine.

A possible example of bypassing is the Department of Health and Human Services’ response to the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned fifty years of precedent and withdrew constitutional protections for induced abortion.⁸⁰ Following that ruling, the Department of Health and Human Services issued a guidance document stating that the federal Emergency Medical Treatment and Labor Act (“EMTALA”), which applies to virtually all hospitals in the United States, requires physicians at covered hospitals to perform abortions in cases where abortion is necessary to resolve an emergency medical condition.⁸¹ The guidance added that “[w]hen a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”⁸² Unlike other interpretations of EMTALA that have taken the form of regulations,⁸³ the Department declined to initiate a rulemaking process with respect to its abortion interpretation.

Undeterred by the fact that the Department’s interpretation came in the form of a guidance document rather than a rule, the Texas Attorney General—along with two groups of pro-life physicians—challenged the interpretation in federal district court, arguing among other points that the Department’s guidance ran headlong into the major questions doctrine because it resolved an “issue of vast policy and political significance” without clear authorization from Congress.⁸⁴ The Department responded that unlike the rules struck down by courts in earlier major questions cases, the EMTALA guidance was “not final agency action subject to judicial review” because it merely interpreted the statute and did not determine the rights or obligations of any party.⁸⁵ Both the federal district court and the Fifth Circuit rejected the Department’s finality argument, concluding that the guidance document reflected a new policy with concrete legal consequences that had all the indicia of final agency action.⁸⁶ In compliance with the district court injunction, the Department is not enforcing its EMTALA guidance in the state of Texas or against members of the two pro-life physicians’ groups while it seeks Supreme Court review, though it is continuing to enforce the guidance throughout the rest of the country.⁸⁷

Time will tell whether bypass via guidance document can succeed in other circumstances. As Ronald Levin observes, case law regarding the rule/guidance distinction is in a state of “general disarray.”⁸⁸ We will return in Section II.C to the questions of when and whether bypass via guidance may be a viable legal strategy. Importantly, though, guidance is not the only means of effectuating bypass: agencies also can seek to skirt the major questions doctrine by pursuing their policy goals through enforcement actions.⁸⁹

One arguable example of bypass via enforcement is the Securities and Exchange Commission’s ongoing effort to police the cryptocurrency industry. The Commission has argued in a series of enforcement actions that certain cryptocurrency offerings are “securities” subject to the registration requirements of the Securities Act of 1933. Some commentators have argued that the Commission’s assertion of jurisdiction over the cryptocurrency industry violates the major questions doctrine because “the cryptocurrency market has vast economic and political significance” and the Commission “has not clearly been empowered by Congress to regulate that market.”⁹⁰ The cryptocurrency exchange Coinbase road-tested this argument in federal district court in the Southern District of New York, where Judge Katherine Polk Failla swatted it away. “Simply put, the cryptocurrency industry cannot compare with those other industries the Supreme Court has found to trigger the major questions doctrine,” Judge Failla wrote.⁹¹ Stymied in the Southern District of New York, cryptocurrency firms have recently filed suits in the Northern and Western Districts of Texas to challenge the Commission’s interpretation of the term “security.”⁹²

Whereas Judge Failla rejected Coinbase’s major questions argument on grounds specific to cryptocurrency and the structure of the securities laws, Todd Phillips and Beau Baumann have argued that the major questions doctrine should never apply to enforcement actions “when courts, not agencies, interpret statutes in the first instance.”⁹³ Phillips and Baumann acknowledge that a categorical exception from the major questions doctrine for agency enforcement actions in federal court would incentivize agencies to bypass the rulemaking process altogether—another instance of scholarship anticipating major questions avoidance, though the authors do not use that term.⁹⁴ Nonetheless, they argue, an enforcement action is “less major” than a legislative rule “because it does not sweep in an entire industry,”⁹⁵ and enforcement actions brought in federal court should lie outside the major questions doctrine’s “domain.”⁹⁶

If courts take up Phillips and Baumann’s suggestion, then bypass via enforcement is likely to become a frequent means of major questions avoidance, at least for agencies such as the Securities and Exchange Commission with authority to bring judicial enforcement actions on their own.⁹⁷ Even if courts do not carve out a categorical exception for enforcement actions, bypass via enforcement may become attractive to agencies seeking to reduce—though not eliminate—the risk of a major questions setback. But as we will see in the next part, the incentives for major questions avoidance—via bypass or via slicing, lumping, or glossing—sometimes can come into conflict with considerations of administrative efficiency, litigation strategy, and political advantage. Major questions avoidance will be an enticing option for agencies in some circumstances, but not in all.

II. The Benefits and Costs of Major Questions Avoidance

A. Benefits

On first glance, major questions avoidance may seem like it brings obvious benefits to an administration or agency seeking to advance a regulatory agenda, at least when a rule might otherwise run aground on the major question doctrine’s shoals. As a general matter, the stricter standard of scrutiny associated with the major questions doctrine—whether in the form of the elephants-in-the-mouseholes canon or the denial of Chevron deference or West Virginia v. EPA’s clear statement requirement—reduces a rule’s survival probability. As a result, major questions avoidance will typically bring a benefit—a lower chance of judicial reversal—that agency and administration officials must weigh against the costs of avoidance.

But before leaving the benefits side of the ledger, it is important to acknowledge that agency and administration officials may not always see major questions avoidance as a benefit. First, sometimes an agency may promulgate a rule not because officials at the agency or the White House think the rule is a good idea but because they are responding to political pressure from outside groups. For example, when the CDC announced a two-month extension to its eviction moratorium in August 2021, the Washington Post described the action as “a move that bent to intense pressure from liberal House Democrats.”⁹⁸ According to the Post, President Biden did not want to extend the moratorium—evidently because he believed that it overstepped the constitutional bounds on executive power—but “House Democrats responded angrily” to the administration’s position.⁹⁹ One progressive Democrat, Representative Cori Bush of Missouri, staged what the New York Times described as “a round-the-clock sit-in on the steps of the United States Capitol that galvanized a full-on progressive revolt,” camping there for four days and nights “in rain, cold and brutal summer heat.”¹⁰⁰ From the perspective of Biden administration officials, issuing the moratorium and then having it be struck down by the Supreme Court may have been exactly the outcome that they needed to get progressives off their backs.

Second, even when administration and agency officials support the policy behind a rule, they still may see a political benefit in having the rule be struck down by the courts—and especially by the Supreme Court. For example, in the case of student debt forgiveness, President Biden arguably stood to gain electorally from his clash with the Court’s conservatives. In a March 2024 poll, seventy percent of young voters, seventy-two percent of Black voters, and sixty-eight percent of Hispanic voters said that student debt cancellation was an “important” issue to them in the upcoming election.¹⁰¹ White House officials might have anticipated that the student debt issue would give a boost to President Biden in his then-anticipated rematch with Donald Trump, whose three appointees to the Supreme Court supplied critical votes against the debt relief rule. (That electoral rematch—of course—never ultimately happened.)

Third and finally, a court decision invoking the major questions doctrine may be useful to an administration that seeks to entrench its policy position. For example, the Supreme Court’s major questions holding in King v. Burwell—in which the Court ruled that the availability of premium tax credits on federally established health insurance exchanges was a “question of deep ‘economic and political significance’ ” beyond the discretion of the Internal Revenue Service¹⁰²—prevented the Trump administration from denying credits to exchange participants after the end of the Obama presidency. Notably, the version of the major questions doctrine that was applied in King v. Burwell simply denied Chevron deference to the Internal Revenue Service’s interpretation of the Affordable Care Act; the agency still could—and indeed did—persuade the Court that its interpretation of the statute was correct as a matter of first principles.¹⁰³ Still, the King v. Burwell episode illustrates the more general point that when agencies are thinking about threats to their regulatory policies, they are thinking about threats not only from the judiciary but also from the next administration.¹⁰⁴ For policy entrenchment reasons—as well as for the above-mentioned reasons related to interest group pressure and electoral opportunity—a judicial determination of majorness may not always be a net-negative for the current occupants of the executive branch.

B. Costs

Notwithstanding the caveats in the previous Section, high-ranking officials at agencies and across the administration generally will not want the courts to classify their regulatory initiatives as implicating the major questions doctrine. Still, they must weigh the benefits of major questions avoidance against the considerable costs. This Section focuses on three

especially significant costs of major questions avoidance: administrative burdens, litigation risks, and political costs.

Administrative Burdens

Major questions avoidance—especially when it takes the form of slicing or lumping—is likely to increase the total burden on agency officials responsible for drafting and promulgating rules. As Jennifer Nou and Jed Stiglitz observe, agencies incur certain “fixed production costs” whenever they issue a new rule: they must establish a docket, write language that goes into every rule, complete internal paperwork, and—for non-independent agencies—secure sign-off from the Office of Information and Regulatory Affairs within the White House.¹⁰⁵ Nou and Stiglitz note that “[t]he presence of fixed production costs generally encourages regulatory bundling”—in other words, encourages agencies to cover more ground in a single rule rather than splitting one rule into several.¹⁰⁶ Slicing—along with the related phenomenon of lumping (in which agencies issue a series of rules under different statutory authorities)—both cut against the incentive to minimize regulatory production costs.

The extent to which regulatory production costs deter avoidance will vary across agencies and across time. First, some agencies are much more adept at issuing rules than others. For example, according to data from Regulations.gov, the EPA issued 384 rules in 2023, while the Equal Employment Opportunity Commission (“EEOC”) issued only three (one of which was a technical amendment to correct a typographical error in an earlier rule and one of which adjusted certain figures for inflation).¹⁰⁷ For an agency that churns out rules like they are cars coming off an assembly line, the costs of a few additional rulemakings may be manageable. For an agency like the EEOC that exercises its rulemaking muscles on rare occasions, the prospect of issuing several rules rather than a single rule may be more daunting.

Second, administrative burden of bypass via enforcement is likely to depend on whether an agency has independent litigation authority. Some agencies—such as the Securities and Exchange Commission and the Consumer Financial Protection Bureau—have authority to initiate litigation in federal court on their own.¹⁰⁸ Others—such as the Department of Health and Human Services—must rely on the Justice Department to bring enforcement actions in federal court.¹⁰⁹ As Kirti Datla and Ricky Revesz note, “the Environmental Protection Agency has independent litigation authority over only a few discrete violations of the Toxic Substances Control Act.”¹¹⁰ Otherwise, the EPA’s ability to enforce the environmental laws in federal court depends on the cooperation of Justice Department attorneys.

Even when Justice Department attorneys are ideologically aligned with an agency’s policy agenda, bypass via enforcement is likely to be more burdensome for agencies without independent litigation authority. Every substantive filing in a case will require coordination—and potentially negotiation—between agency officials and Justice Department counterparts. As a result, we might hypothesize that agencies with independent litigation authority will be more likely to pursue bypass via enforcement than agencies without. Returning to the EPA/EEOC comparison, the EPA may be more likely to pursue slicing or lumping as an avoidance tactic because it is quite adept at issuing rules but lacks independent litigation authority; the EEOC may be more likely to pursue bypass via enforcement because it lacks the EPA’s well-practiced rulemaking infrastructure, but possesses independent litigation authority at the district court and circuit court level.¹¹¹

Finally, the administrative burden of avoidance is likely to be more salient near the end of a presidential term. This is because administrative burden results not only in a costlier regulatory process but also a slower process. The need for speed is greatest in an administration’s final days: executive branch turnover on January 20 of every fourth or eighth year means that regulatory projects not completed before that date are likely to die if the next administration does not support the effort, leading to the familiar phenomenon of “midnight rulemaking.”¹¹² Even when the President hands the baton to a successor of the same party—something that has happened outside the context of resignation or death only once since World War II—rulemaking activity may accelerate at an administration’s end. According to one account, the Reagan administration rushed in its waning days to finalize regulations that were deemed “too hot to handle” during the 1988 presidential campaign, “hoping to minimize the divisive controversy George Bush might otherwise face” if those issues were resolved before the general election or after Bush’s inauguration.¹¹³ If time is of the essence—either because the next administration has different policy priorities or because the current administration wants to shield a politically aligned successor from blowback—then major questions avoidance via slicing, lumping, or bypassing will be less viable strategies.

Speed also matters at an earlier juncture in an administration’s final year because of the Congressional Review Act, which allows Congress to block a regulation from taking effect by enacting a joint resolution.¹¹⁴ If a rule is finalized within the last sixty Senate “session” days or sixty House “legislative” days before Congress adjourns, the next Congress will have an opportunity to block the rule—and, importantly, the joint resolution will be immune from a Senate filibuster.¹¹⁵ Because a House “legislative day” can span multiple calendar days—and because both the House and Senate may adjourn earlier or later than expected—the deadline for finalizing a rule in order to avoid fast-track review by the next Congress is variable. In an election year, it may fall anywhere from the spring to the late summer.¹¹⁶

Joint resolutions of disapproval under the Congressional Review Act are still subject to presidential veto, so absent a change in administration or an extremely unpopular rule that is opposed by a veto-proof supermajority of Congress, the Congressional Review Act does not pose a significant threat to agency action in most years. But in the last year of a presidential administration, agencies have strong incentives to finalize controversial rules early enough that the next Congress and the next President cannot use the Congressional Review Act to undo the agencies’ handiwork. Almost certainly for that reason, April 2024—which was thought to be the last month before Biden administration rules became subject to the fast-track disapproval procedure in the next Congress—was “the busiest month on record” for major regulations, with the Office of Information and Regulatory Affairs reviewing more than eight times as many economically significant final rules as in the typical month.¹¹⁷ One might describe this phenomenon as “8 p.m. rulemaking”—rather than “midnight rulemaking”—because it occurs roughly five-sixths of the way through a President’s term (just as 8 p.m. strikes five-sixths of the way through the day). As the 8 o’clock hour approaches, the efficiency drawbacks of slicing and lumping increase because delay raises the risk of reversal under the Congressional Review Act. In that timeframe, agencies must weigh the benefits of major questions avoidance against the benefits of Congressional Review Act avoidance.

Litigation Risks

So far, the analysis in this Part has proceeded under the guiding assumption that major questions avoidance raises the probability that a regulation will survive judicial review. That assumption is probably accurate most of the time—but not all of the time. In at least three scenarios, certain forms of major questions avoidance may increase an agency’s litigation risk.

First, when an agency slices a single rule into several smaller rules issued sequentially, it may expose itself to challenges asserting that the distinctions it has drawn (for example, among industries or among regions) are arbitrary and capricious. As the D.C. Circuit put it, “[t]he great principle that like cases must receive like treatment” is “black letter administrative law.”¹¹⁸ A regulatory scheme may fail in court both because it is “overinclusive” and “underinclusive.”¹¹⁹ The merits of any underinclusivity challenge to a sliced rule will depend on the details, but it would be an overgeneralization to say that smaller rules always fare better in court than larger ones.

Second, to the extent that an agency engages in avoidance via glossing, it may open itself to attack under the State Farm doctrine, according to which a rule may be set aside as arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.”¹²⁰ As the D.C. Circuit has put it, administrative law’s “reasoned decision-making” standard “requir[es] the agency to focus on the values served by its decision.”¹²¹ Courts will—on occasion—strike down an agency rule because the agency explained itself in entirely technical or legalistic terms when its decision required a substantive value judgment.¹²² To be sure, courts typically grade agency explanations on a generous curve: an agency usually won’t have to say all that much to satisfy State Farm.¹²³ But an agency that engages in hyperaggressive glossing—denying or significantly downplaying the economic, political, or ethical stakes of its decision—may leave itself vulnerable on the State Farm flank even as it seeks to shield itself from the major questions doctrine.

Finally, when an agency pursues bypass via guidance document, it may reduce the risk that its pronouncement will be deemed a final agency action subject to judicial review but raise the risk that the guidance document will be deemed a “legislative rule” in disguise that ought to have gone through a notice-and-comment process. Many more regulatory initiatives have failed on notice-and-comment grounds than on major questions grounds: as Ronald Levin observes, “the question of whether a supposedly informal pronouncement of an administrative agency is actually a rule that should have been adopted through notice-and-comment procedure may well be the single most frequently litigated and important issue of rulemaking procedure before the federal courts today.”¹²⁴ Note that the notice-and-comment concern does not apply to avoidance via slicing and lumping provided that the sliced or lumped-together rules each go through notice and comment. But, returning to the regulatory-production-costs point above, the rigamarole of multiple notice-and-comment procedures—necessary to insulate sliced and lumped-together rules against litigation risk—further raises the administrative burden of avoidance.

Political Costs

Along with its administrative burdens and litigation risks, major questions avoidance potentially comes with significant political drawbacks. Presidents want credit from voters for their regulatory achievements. Agency heads with ambitions for higher office want the world to notice their accomplishments. These outcomes are more likely when agency actions generate media attention, and the media is much more likely to cover rules that are larger in scope. Thus, even when the major questions doctrine discourages agencies from issuing broad rules, political incentives may push in the opposite direction.

The political costs of major questions avoidance will vary across time, across agency, and across subject matter. Electoral incentives are likely to be most salient in the last year of an administration—roughly around the same time that the costs of regulatory delay reach their peak. Meanwhile, career incentives do not affect all agency heads equally. Although it is often said that “every senator looks in the mirror and sees a future president,”¹²⁵ the CDC Director may look in the mirror and see no one other than the CDC Director. For some agency heads without further political ambitions, staying out of the spotlight may be an added benefit of major questions avoidance. Moreover, in some cases, an administration may—for electoral reasons—want to minimize attention to a controversial rule. For example, Biden administration officials may have been happy to regulate coal through a series of smaller rules because coal regulation—though popular among environmentalists—carries electoral risks in the swing state of Pennsylvania, the third largest coal-producing state in the country.¹²⁶ In those instances, major questions avoidance and electoral politics may work hand in hand.

Finally, agencies and administration officials may be able to capture both the benefits of major questions avoidance and the political benefits of larger regulatory initiatives by emphasizing the combined effect of several smaller rules. President Biden’s “anti-glossing” approach to student debt forgiveness is arguably a case in point: by touting the combined effect of several different student loan relief initiatives, President Biden successfully vaulted his series of smaller debt cancellations onto the front page of the New York Times and into the national spotlight.¹²⁷ Still, a drawback of major questions avoidance is that even when the combined effects of multiple rules, guidance documents, administrative adjudications, or enforcement actions are far-reaching, the consequences will typically be more difficult to explain to the average voter than a single sweeping rule. Thus, the political cost of major questions avoidance may be not only that avoidance leads to less attention but also that it engenders lower comprehension.

Ultimately, whether the political costs of major questions avoidance outweigh the benefits depends on a question much larger than the major questions doctrine itself: what motivates regulators? Perhaps counterintuitively, major questions avoidance may be more likely if the “public interest” theory of regulation applies: if regulators are “benevolent . . . , trustworthy, disinterested, and public-spirited experts who produce rules that ensure general economic efficiency and maximum welfare for society.”¹²⁸ If agency and administration officials respond more strongly to personal or partisan motives, then the political costs of major questions avoidance may outweigh the benefits from those officials’ self-interested perspective. To be sure, this conclusion comes with caveats. Regulators motivated by private interests may embrace avoidance if—for example—they are responsive to inducements from sophisticated interest groups that will appreciate the combined effects of several sliced or lumped rules. And public-interested regulators may eschew avoidance if they conclude—perhaps after weighing the considerations laid out in the next part—that major questions avoidance has a corrosive effect on the legitimacy of the administrative state.

III. Major Questions Avoidance and the Legitimacy of the Administrative State

So far our analysis has been primarily positive and predictive: how—and how often—will agencies modify their regulatory strategies to avoid the major questions doctrine? This Part shifts into a normative gear, asking what the phenomenon of major questions avoidance means for the legitimacy of the modern administrative state. Following Richard Fallon’s tripartite classification of legitimacy claims into sociological, legal, and moral categories, I use the term “legitimacy” here in the moral sense: “legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”¹²⁹ As we shall see, different theories of administrative state legitimacy lead to different implications for major questions avoidance. This Part focuses on four prominent theories, which vary based on the source to which they ascribe the administrative state’s legitimacy: (1) presidential legitimacy, (2) legislative legitimacy, (3) expert legitimacy, and (4) participatory legitimacy.

A. Presidential Legitimacy

Probably the most prominent normative theory of the administrative state in American legal thought today locates the source of agency legitimacy in the presidency.¹³⁰ The leading exponent of the presidential legitimacy theory in the legal academy—before she became Solicitor General and then Associate Justice of the Supreme Court—was Professor and Dean Elena Kagan.¹³¹ As then-Professor Kagan observed in an enormously influential 2001 Harvard Law Review article, “Presidents . . . are the only governmental officials elected by a national constituency in votes focused on general, rather than local, policy issues.”¹³² Paraphrasing the earlier work of administrative law scholar Jerry Mashaw, Kagan wrote that bureaucratic action thus “turns out to have a democratic pedigree purer even than Congress’s in our system of government.”¹³³

Kagan’s arguments regarding the democratic bona fides of presidential administration are both backward-looking and forward-looking. From a backward-looking perspective, “a President has won a national election,” and “this election, exactly because it was national in scope, probably focused on broad policy questions, conveying at least some information to the public about the future President’s attitude toward regulation.”¹³⁴ But in Kagan’s view, the “more important point is prospective.” As she puts it:

[B]ecause the President has a national constituency, he is likely to consider, in setting the direction of administrative policy on an ongoing basis, the preferences of the general public, rather than merely parochial interests. . . . In his first term, the desire for reelection alone provides a reason to do so, including through the adoption of policies favored by a majority of the voting public. And even in his second term, a President retains strong incentives to consider carefully the public’s views as to all manner of issues—incentives here related to his ambition for achievement, and beyond that for a chosen successor or historical legacy.¹³⁵

This theory of “presidential legitimacy”—whereby the exercise of executive power derives its democratic justification from the relationship between the President and “the People”—also bears implications for the relationship between the President and the agencies. According to Kagan’s theory of presidential legitimacy, “enhanced presidential control of administration serves democratic norms.”¹³⁶ This conclusion counsels for a more robust presidential role in regulatory decision-making.¹³⁷ It also favors a forthright acknowledgement that agency decisions emanate from the President. In Kagan’s words, “[t]o the extent that presidential supervision of agencies remains hidden from public scrutiny, the President will have greater freedom to play to parochial interests.”¹³⁸ By contrast, “[i]t is when presidential control of administrative action is most visible that it most will reflect presidential reliance on and responsiveness to broad public sentiment.”¹³⁹

From a presidential legitimacy perspective, the major questions doctrine seems 180-degrees backwards. Agency decisions of vast economic and political significance are the most likely to involve—and to be perceived by the public as emanating from—the President. Yet as Jodi Short and Jed Shugerman observe, the Court’s decisions in its major questions cases all focus on the role of “unaccountable bureaucrats”—a phenomenon that the authors describe as “presidential erasure.”¹⁴⁰ As Short and Shugerman write, the President “actively supported” and “took public responsibility for” each of the policies at issue in the Court’s major questions cases, and each of these policies provoked “vigorous” national debates.¹⁴¹ Nonetheless, “despite the special national democratic character of presidential involvement in policies that have been struck down in MQD cases, the President is virtually invisible in these opinions.”¹⁴²

Indeed, from a presidential legitimacy perspective, it is arguably “minor questions,” not major ones, that ought to trigger the most stringent judicial scrutiny.¹⁴³ Regulations that address minor questions are the least likely to reach the President’s desk, least likely to generate media coverage, and least likely to swing votes in a general election. Those rules are probably the most likely to advance the private objectives of special interest groups rather than the greater good of the public at large. Yet under current doctrine, regulations that address minor questions escape the searching judicial review that applies to high-profile rules that already have been approved by the President and are likely to be vetted by voters.

Given that the major questions doctrine makes little sense from a presidential legitimacy perspective, one might think that adherents to the presidential legitimacy theory would embrace major questions avoidance. As Daniel Farber, Jonathan Gould, and Matthew Stephenson argue, “if a legal rule produces undesirable effects, a workaround will generally be a welcome corrective.”¹⁴⁴ Major questions avoidance offers a possible exception to this general rule. Sliced rules under the same statutory authority, smaller rules under different statutory authorities, guidance documents, administrative adjudications, and enforcement actions all come with the democratic disadvantages of “minor questions”: they are less likely to reach the presidential level and less likely to garner media and voter attention. As Freeman and Stephenson write, “[i]f agencies downplay the real reasons for their rules, segment actions to make them seem more innocuous, or try to portray significant policy changes as technocratic, it becomes more difficult for the public to know what the executive branch is doing (and why), and therefore harder to hold the President to account for it.”¹⁴⁵ Thus, while the major questions doctrine is undesirable from a presidential legitimacy perspective, major questions avoidance is also undesirable from a presidential legitimacy perspective. Indeed, major questions avoidance may be particularly pernicious because—in Freeman and Stephenson’s telling—it redounds to the advantage of “[s]ophisticated, well-organized interest groups,” who are “more likely than ordinary citizens to understand how a collection of seemingly technocratic, incremental regulations contribute to some larger policy agenda.”¹⁴⁶ For presidential legitimacy theorists who value presidential administration precisely because it makes agencies accountable to a national electorate, major questions avoidance may be a cure even worse than the disease.

B. Legislative Legitimacy

Whereas the presidential legitimacy account locates the justification for administrative power in the executive (in other words, Article II), the legislative legitimacy account shifts focus to Article I: Congress. Members of the House and—for the last century¹⁴⁷—the Senate are the only national officials who are elected directly by the people. Ordinary citizens face a much higher chance of having their concerns heard by their Congressmember or home-state Senators than by the President. And, of course, the Constitution assigns all lawmaking powers to Congress¹⁴⁸—a fact that matters more to formalists than to functionalists but still may matter to functionalists who see some value in achieving “fit” between the constitutional framework and the practical reality of the modern administrative state.

The major questions doctrine fares better from a legislative legitimacy perspective than from a presidential legitimacy perspective. Given the scope and complexity of a modern state, it would be impossible for the legislature to weigh in on every policy choice, but policy choices of vast economic and political significance should be made by officials who are accountable to voters through direct elections—or so the argument goes. Risk-averse lawmakers who are concerned about their own reelection may be tempted to pass the buck for controversial decisions to administrative agencies,¹⁴⁹ but the major questions doctrine prevents legislators from sloughing off responsibility for those choices. Seen in this light, the major questions doctrine reflects the not-altogether-unreasonable proposition that Congressmembers must not be allowed to escape responsibility for important and controversial questions of climate change, public health, student debt, and so on—or if Congressmembers do pass the buck, they should have to fess up to it.

But while the legislative legitimacy theory leads to greater sympathy toward the major questions doctrine, it also—like the presidential legitimacy theory—engenders antipathy toward major questions avoidance. Sliced rules, lumped-together rules, guidance documents, administrative adjudications, and enforcement actions are not only more likely to escape presidential attention but also more likely to evade legislative oversight. Congressional committee hearings are an important mechanism through which the legislature regulates the administrative state: when members of the House and Senate have questions about an agency’s policies or performance, they can summon agency officials to appear before committees and—if dissatisfied with the officials’ responses—can restrict or condition funding, hold up appointments, or potentially amend the relevant statutes.¹⁵⁰ But these accountability mechanisms are less likely to operate when incremental regulatory actions fly below Congress’s radar.

From a legislative legitimacy perspective, then, the relationship between the major questions doctrine and major questions avoidance conforms to the general relationship between first-order rules and workarounds identified by Farber et al.: when the first-order rule (here, the major questions doctrine) “tends to produce desirable effects,” then “a workaround will generally be undesirable.”¹⁵¹ In this case, though, the undesirability of the workaround also calls into question the wisdom of the first-order rule. Insofar as the major questions doctrine results in agencies effectuating their policies through incremental regulations, guidance documents, administrative adjudications, and enforcement actions that escape legislative oversight, the upshot may be that the House and Senate will exert even less influence over the questions of vast economic and political significance that—according to legislative legitimacy theorists—ought to remain within the province of Congress. Thus, for legislative legitimacy theorists who are sympathetic to the major questions doctrine ab initio, the possibility of major questions avoidance should lead to reconsideration—and perhaps revision—of that initial view.

C. Expert Legitimacy

A third normative theory of the administrative state—which emerges most clearly in the academic writing of former Supreme Court Justice Stephen Breyer¹⁵²—focuses on the role of expertise as a legitimating force. In Breyer’s view, neither the public nor Congress is well-suited to understand and respond to health and safety risks.¹⁵³ For Breyer, the only hope for effective risk regulation lies with an expert bureaucracy. As he put it in Breaking the Vicious Circle, his last book on administrative law before joining the Supreme Court:

A bureaucracy’s rationalizing tendencies match the need for consistency through system-building and prioritizing; a bureaucracy’s use of expertise matches the need for technically related regulatory improvement; a bureaucracy’s insulation matches the need for protection from the vicissitudes of public opinion based on a single substance or on a single issue; and a successful bureaucracy can begin to build public confidence in its systems, thereby making its results more authoritative.¹⁵⁴

According to this view, the justification for the administrative state’s claim to authority rests not only in the technical qualifications of individual bureaucrats but also in the institutional structure through which bureaucratic expertise is developed and deployed.

Some version of the major questions doctrine might be justifiable under an expert legitimacy account. Indeed, the doctrine’s name traces back to a line in a 1986 law review article by then-First Circuit Judge Breyer: “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.”¹⁵⁵ Judge Breyer made this point in the context of Chevron and congressional intent: a statutory ambiguity is less likely to reflect an implicit delegation to an agency when the relevant issue is major.¹⁵⁶ But the major questions doctrine arguably also fits within Breyer’s larger theory of expert legitimacy. If an issue is non-technical—if it implicates substantive value judgments with respect to which expert agencies enjoy no particular advantage—then the case for shifting authority from Congress to the bureaucracy is relatively weak. The major questions doctrine potentially serves to sort between the issues on which Congress can be trusted to channel public values and the issues that require depoliticized bureaucratic management.

An expert legitimacy version of the major questions doctrine might differ from the version adopted by the current Court. Rather than emphasizing the economic or political significance of an issue, the expert legitimacy version might focus on whether the relevant regulation implicates the agency’s experience and expertise. Framed this way, some of the Court’s major questions decisions might be better understood as what Jody Freeman has called “wrong agency” cases: cases in which the Court denies deference to an agency because the regulation at issue lies within a different agency’s bailiwick.¹⁵⁷ Moreover, adherents to the expert legitimacy account might conclude that some of the Court’s major questions cases were wrongly decided on the facts.¹⁵⁸ But the major questions doctrine is not as anathema

from an expert legitimacy perspective as it might be from a presidential legitimacy perspective.

What about major questions avoidance? The possibility that agencies might split their rules into smaller pieces that fly below the radar of the President and Congress is less disturbing from an expert legitimacy perspective than from a presidential or legislative legitimacy perspective. As Jody Freeman and Adrian Vermeule observe, the Court’s decision in Massachusetts v. EPA,¹⁵⁹ arguably the jurisprudential apogee of expert legitimacy theory, is motivated by a concern about White House meddling in agency scientific judgments.¹⁶⁰ For expert legitimacy theorists, keeping certain regulatory issues off the President’s desk is a desirable feature, not a bug, of major questions avoidance. So, too, with respect to Congress: “Congress is highly responsive to public opinion, as it ought to be,” Breyer wrote in Breaking the Vicious Circle.¹⁶¹ “This means, however, that if the public finds it difficult to order risk priorities, Congress is also likely to find it difficult.”¹⁶² At least for risk regulation decisions such as the choices related to cigarettes, climate change, and COVID-19 transmission at issue in some of the Court’s major questions cases, major questions avoidance—insofar as it also leads to avoidance of presidential and congressional oversight—is not an entirely unwelcome outcome.

From an expert legitimacy perspective, major questions avoidance may bring ancillary benefits beyond simply keeping certain issues away from the President and Congress. When an agency slices a broad rule R into a series of smaller rules R_a, R_b, R_c, and so on for industries A, B, C, and so forth, the agency may be more likely to leverage industry-specific expertise—from its own ranks or from the ranks of other agencies—in crafting each of the smaller rules. Drafting a regulation for a single industry focuses the bureaucratic apparatus on the particular characteristics of that industry—characteristics that might be ignored in an omnibus rulemaking. Moreover, if the agency proceeds sequentially—for example, promulgating rule R_a for industry A before it applies rule R_b to industry B—then the agency may gain on-the-ground knowledge from its experience with industry A that allows it to design a better rule for industry B. And by the time the agency reaches industry Z, cumulative knowledge from earlier efforts may allow the agency to craft a significantly superior regulatory regime.

This conclusion comes with qualifications. First, the types of rules to which an expert legitimacy theorist may wish to apply the major questions doctrine—nontechnical rules of vast economic and political significance—are not the same rules that they may wish to see sliced into a series of sub-rules. From an expert legitimacy perspective, major questions avoidance is most beneficial with respect to technical regulations that are likely to escape the major questions doctrine in the first place. And second, the benefits of slicing from an expert legitimacy perspective do not necessarily carry over to other forms of avoidance. For example, expert legitimacy theorists might not welcome bypass via enforcement if enforcement shifts influence toward generalist litigators in the agency’s enforcement division or at the Justice Department. In those instances, major questions avoidance—rather than empowering subject-matter experts within an agency—may relegate them to the regulatory sidelines.

D. Participatory Legitimacy

A fourth normative theory of the administrative state locates the legitimacy of agency authority in public participation. This theory of participatory legitimacy draws inspiration from the work of John Dewey, a prominent figure in early twentieth century pragmatist and progressive thought. In Dewey’s words:

No government by experts in which the masses do not have the chance to inform the experts as to their needs can be anything but an oligarchy managed in the interests of the few. And the enlightenment must proceed in ways which force the administrative specialists to take account of the needs.¹⁶³

Blake Emerson, the leading exponent of participatory legitimacy theory in the American legal academy today, has identified elements of Dewey’s vision across the modern administrative state. According to Emerson, the notice-and-comment process “institutionalizes the Progressive concern for public participation in agency policymaking.”¹⁶⁴ As Emerson continues, “Courts then police this process to ensure that agencies draw reasonable conclusions from the comments they receive, address all significant comments, and ensure that all major policy choices are sufficiently ventilated.”¹⁶⁵ The result is democratic legitimation of a different sort from what is contemplated by Kagan’s presidentialist account—a form of democratic legitimation that depends less on votes than on voice.

For Emerson, both the major questions doctrine and major questions avoidance are normatively problematic. “The problem with the [major questions] doctrine,” Emerson writes, is “that it discounts and short-circuits rational public deliberation between administrative officials and the public at large.”¹⁶⁶ The problem with major questions avoidance is even more acute. In particular, Emerson anticipates that the doctrine will lead agencies to gloss—to explain their decisions on questions of vast economic and political significance in highly technical terms. “This retreat into technocracy will further imperil democratic transparency,” according to Emerson, “because important value choices will be kept from public view, and dressed up in the supposedly neutral language of expertise.”¹⁶⁷

Participatory legitimacy theory—though it takes a dim view of glossing—may reach different normative conclusions regarding other avoidance strategies. Arguably, participatory legitimacy theorists should welcome slicing. From a participatory legitimacy perspective, smaller rules may be preferable to larger rules. While individuals have the formal opportunity to participate in the notice-and-comment process for all rules regardless of scope, any single individual’s voice is more likely to be heard in a smaller rulemaking than a larger rulemaking, since in the latter case, hundreds of thousands of other individual and organizational commenters are likely to drown out a lone voice. This participatory legitimacy argument for smaller rules runs parallel to the classic argument in the federalism literature for smaller jurisdictions: that “thicker forms of participation” such as contacting officials and attending civic meetings increase as jurisdictional size decreases.¹⁶⁸ On this account, the problem with major rules—like the problem with national governments—is that their scope is too broad, whether in subject-matter or geographic terms, to facilitate efficacious individual participation in their design.

Not all participatory legitimacy theorists are likely to be convinced by this argument, and this argument does not apply to all other forms of major questions avoidance. A possible participatory benefit of larger rules is that they are more likely to generate media coverage and debate, facilitating the “value-oriented process of public engagement” that, per Emerson, is key to participatory legitimation.¹⁶⁹ The benefit of greater opportunities for individual voice in the small-rule context must be weighed against the benefit of greater public attention for larger rules. Moreover, the tentative argument for slicing on participatory legitimacy grounds does not apply to bypass: guidance documents—if they do not go through notice-and-comment—as well as administrative adjudications and enforcement actions deprive the public of the participatory opportunities that notice-and-comment rulemaking allows. So, participatory legitimacy theory’s verdict on both the major questions doctrine and major questions avoidance appears to be mixed: a doctrine that incentivizes agencies to slice their larger rules into smaller pieces may yield some participatory benefits, but other responses to the major questions doctrine generate participatory costs. The justification for the first-order rule may thus depend on which workaround predominates.

***

Summing up so far: We have sought in this Part to answer a relatively narrow normative question: is major questions avoidance desirable? Attempting to answer that narrow question requires a broader normative theory of administrative state legitimacy. Different normative theories of administrative state legitimacy bear very different implications both for the major questions doctrine and for major questions avoidance. Moreover, thinking through the phenomenon of major questions avoidance from multiple normative perspectives yields fresh insights regarding the relationship between first-order rules and workarounds in public law.

The next (and final) Part shifts focus from the administrative state to the judicial branch: how should courts respond to major questions avoidance? For presidential legitimacy theorists, the answer is easy: the major questions doctrine should be eliminated, in which case we would not need to worry about major questions avoidance. Meanwhile, expert legitimacy theorists and participatory legitimacy theorists may not necessarily see major questions avoidance as a problem to be solved—at least when avoidance takes the form of slicing (and in a similar vein, lumping). But for legislative legitimacy theorists, major questions avoidance poses a genuine dilemma: avoidance has the potential to undermine the benefits that legislative legitimacy theorists ascribe to the major questions doctrine. Indeed, the major questions doctrine—to the extent that it incentivizes avoidance—may be counterproductive to legislative legitimacy theory’s larger goals. Yet, as we will see in the next part, crafting an effective judicial response to major questions avoidance will prove to be a Herculean—and perhaps Sisyphean—challenge.

IV. Major Questions Anti-Avoidance

Anti-avoidance rules abound in American law. For example, the Bank Secrecy Act’s anti-avoidance rule prohibits individuals from splitting larger cash transactions into smaller ones to evade the Act’s $10,000 reporting threshold—a practice colloquially known as “smurfing.”¹⁷⁰ Anti-avoidance rules in bankruptcy law such as the fraudulent conveyance and fraudulent transfer provisions prevent debtors from evading creditors’ efforts to enforce valid claims.¹⁷¹ Tax law—in particular—is replete with anti-avoidance rules, including the economic substance doctrine,¹⁷² the substance-over-form doctrine,¹⁷³ and the step transaction doctrine.¹⁷⁴

Courts typically apply anti-avoidance rules ex post—after all, the relevant avoidance actions have occurred. For example, under the step transaction doctrine, a court or the IRS will look retrospectively and wholistically at a series of completed steps and assess the federal tax consequences based “on a realistic view of the entire transaction.”¹⁷⁵ Theoretically, a major questions anti-avoidance rule could be applied ex post or ex ante. In the ex post version, the court would consider whether sequential regulatory actions, taken together, resolve a question of vast economic and political significance. In the ex ante version, the court would seek to intervene at the beginning of the sequence. As we shall see, both the ex ante and ex post versions lie within the bounds of imagination, but courts that seek to instantiate either strategy in the real world will encounter formidable challenges.

A. Ex Ante Anti-Avoidance

Ex ante anti-avoidance is easiest to conceptualize in the context of slicing. Imagine that an agency applies rule R_a to industry A and that the single-industry rule would not itself trigger the major questions doctrine. Now imagine that the same statutory theory that justifies the application of rule R_a to industry A also would authorize the application of R_b to industry B, R_c to industry C, and so on, all the way to industry Z, and that rules R_a through R_z would have a combined effect of vast economic or political significance. An ex ante version of major questions anti-avoidance would allow a regulated party in industry A to challenge rule R_a on major questions grounds, even though the sequence of rules might not cross the majorness threshold until much later down the line.

An ex ante version of major questions anti-avoidance would encounter serious difficulties in practice. First, the ex ante version would require courts to anticipate all—or at least many—of the possible regulations that follow logically from the statutory interpretation that justifies R_a. Only then could courts begin to evaluate whether these regulations, considered cumulatively, rise to the level of majorness. Many commentators have observed that this latter step—the determination of majorness—is itself an unmanageable inquiry.¹⁷⁶ As Ronald Levin writes, “criticisms of this sort should be taken with a grain of salt” because “[m]any administrative law doctrines implicate judgment calls,” but “[i]n this instance,” the manageability critique “is well founded.”¹⁷⁷ An ex ante major questions avoidance doctrine would be doubly difficult from a judicial manageability perspective—perhaps much more than doubly, because the first step (conjuring up regulations that do not yet exist) places a much heavier tax on the judicial imagination than determining whether an already-existing regulation implicates a major question. The difficulty is especially daunting when avoidance takes the form of lumping rather than splitting: judges will have to imagine not only the possible applications of a single statute but also possible similar uses of other statutes that the agency has not yet invoked.

To be sure, a court that is dead set on advancing a deregulatory agenda may be tempted to test out an ex ante anti-avoidance doctrine anyway. But judges—even deeply ideological judges—still usually assign some weight to other values, such as predictability and judicial economy. Even for judges with strong conservative or libertarian leanings, an unpredictable and unmanageable ex ante avoidance doctrine may prove to be a game not worth the candle.

Along with judges, regulated parties may shy away from an ex ante version of major questions anti-avoidance. Consider the dilemma facing a regulated party challenging the application of rule R_a to industry A. To prevail on an ex ante anti-avoidance theory, the challenger would have to make two showings: (1) that the same statutory interpretation that justifies the application of rule R_a to industry A also would justify the application of R_b to industry B, R_c to industry C, all the way through R_z for industry Z; and (2) that rules R_a through R_z rise to the level of majorness when assessed in the aggregate. If the challenger wins at the first step but not the second—if the court (1) agrees with the challenger that the agency’s authority to apply rule R_a to industry A also implies its power to promulgate similar rules for B through Z but (2) disagrees with the challenger’s claim that the resulting regulatory bundle would reach the majorness threshold—then the challenger will have blazed a path for much more extensive regulation in the future. And given how amorphous the majorness standard is,¹⁷⁸ litigants can rarely be confident at the outset of the first step that they will prevail if they reach step two.

Granted, a firm in industry A may not care about throwing its counterparts in industries B through Z under the bus. The calculus could change, though, if the firm is a multi-sector conglomerate with subsidiaries not only in industry A but also sprinkled across the rest of the alphabet. Likewise, a firm may be reluctant to press an ex ante avoidance argument if A, B, C, and so forth—instead of representing different industries—represent different products made by the same factory, different pollutants emitted by the same facility, or different trade practices of the same company. In those cases, winning a half-victory in an ex ante anti-avoidance case amounts to scoring on one’s own goal.

None of this is to say that litigants will never raise ex ante anti-avoidance arguments or that these arguments will never succeed. At least debatably, Utility Air Regulatory Group v. EPA presents a real-world example of ex ante anti-avoidance. In that case, the EPA argued that the Clean Air Act authorized it to regulate carbon dioxide and other greenhouse gas emissions from stationary sources that release 100,000 tons or more of carbon dioxide equivalent units each year.¹⁷⁹ The Supreme Court, in a majority opinion by Justice Scalia, observed that the same statutory theory would allow—indeed, would require—the EPA to regulate emissions from units that release just 100 to 250 tons of carbon dioxide equivalent units each year, which would sweep in “millions[] of small sources nationwide.”¹⁸⁰ The Court held that the more expansive rule would trigger the major questions doctrine even though the EPA had not yet (and probably never would) assert such far-reaching authority. “EPA’s interpretation . . . would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization,” the Court stated.¹⁸¹ “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ”¹⁸²

Utility Air is an unusual case. There, the EPA explicitly acknowledged that its statutory interpretation would open the door to the regulation of millions more facilities.¹⁸³ In other words, the agency connected the dots from Rule R_a to R_z itself. Utility Air thus did not require litigants to make the highly risky move of arguing for a more expansive understanding of an agency’s authority, nor did it require courts to embark on an unguided imaginative journey into the land of regulatory hypotheticals. These unusual features of Utility Air help to account for the willingness of industry litigants and Justices to travel down the ex ante anti-avoidance path. In other cases, the difficulties of ex ante anti-avoidance from both a judicial-management and litigation-strategy perspective are likely to encourage a greater emphasis on the ex post alternative.¹⁸⁴

B. Ex Post Anti-Avoidance

Whereas ex ante anti-avoidance requires a court to anticipate what future regulations might follow from an agency’s interpretation of a statute, ex post anti-avoidance allows courts to adopt a wait-and-see approach. Consider again the example of an agency sequentially applying a series of rules (R_a, R_b, R_c, and so forth) to different industries. Ex post anti-avoidance would let a litigant challenge a later rule in the sequence (say, R_z) on the ground that rules R_a through R_z—in combination—trigger the major questions doctrine. Thus, ex post anti-avoidance averts two of the major difficulties facing ex ante anti-avoidance: (1) ex post anti-avoidance does not require litigants to argue for a more expansive understanding of agency authority, and (2) ex post anti-avoidance does not require courts to conjure up rules that do not yet exist.

For these reasons, major questions anti-avoidance—to the extent that it ever takes shape—is likelier to crystallize in ex post rather than ex ante form. Still, ex post anti-avoidance encounters difficulties of its own. The first is jurisdictional: even if a court concludes on a challenge to rule R_z that the combination of rules R_a through R_z trigger the major questions doctrine, regulated actors in industry A may not be party to the case involving Z. Moreover, the court’s anti-avoidance decision in the Z case may have uncertain implications for A, B, and C, as the agency may have additional area-specific rationales for its rules in those industries that require individualized adjudication. Thus, the class action mechanism may be a poor fit for ex post anti-avoidance cases,¹⁸⁵ requiring a flood of follow-on cases in order to wipe the regulatory slate clean.

Aside from the jurisdictional challenges (which may turn into docket management challenges if an ex post anti-avoidance decision for industry Z sets off a deluge of follow-on suits from regulated parties subject to earlier rules in the sequence), ex post anti-avoidance confronts courts with the challenge of determining which rules are sufficiently similar that they should be considered as part of the aggregate that is analyzed for majorness. Not all regulatory sequences will announce themselves as clearly as the alphabetical examples in this Article. And the aggregation challenge will prove particularly burdensome in the lumping context, where aggregation requires a comparison of regulations promulgated under different statutory authorities. Granted, courts make difficult determinations of similarity in other settings—ranging from anti-discrimination law to antitrust law—though, in many of those settings, courts struggle with the similarity inquiry.¹⁸⁶ What we can say with confidence is that while ex post avoidance may not be impossible, it will place new doctrinal-development demands on the judiciary.

Finally, the most significant challenge for ex post anti-avoidance is that it may come too late to change on-the-ground realities. Most of the Court’s major questions cases—including the COVID-19 vaccine mandate case,¹⁸⁷ the Clean Power Plan case,¹⁸⁸ and the student loan case¹⁸⁹—reached the Court in a pre-enforcement posture. Once a rule has gone into effect and parties have begun to comply—once vaccine doses have gone into arms or scrubbers have been installed on power plants—those regulatory consequences are difficult to undo. That was the rationale for the Court’s Abbott Labs doctrine favoring pre-enforcement review of regulatory action: if a court decision was to shield regulated parties from a rule’s consequences, the decision ought to come before parties “change[d] all their labels, advertisements, and promotional materials,” “destroy[ed] stocks,” and “invest[ed] heavily in . . . new supplies.”¹⁹⁰ With ex post anti-avoidance, by contrast, rule R_a might remain in force for industry A for several months or years before a court concludes in an industry Z case that the agency’s sequence of rules R_a through R_z trigger major questions scrutiny. Thus, even if courts can overcome the judicial manageability challenges of ex post anti-avoidance, agencies still will have opportunities to reshape entire industries before ex post anti-avoidance cuts off their regulatory efforts.

Conclusion

Major questions avoidance illustrates the concept of question size elasticity in both directions. Not only can a larger regulatory question be subdivided into several smaller ones, but the seemingly self-contained topic of major questions avoidance also inspires much larger theoretical and empirical inquiries that go to the heart and soul of the modern administrative state. Predicting the probability of major questions avoidance required us to delve deeply into the motives of agency officials. Evaluating the normative desirability of avoidance necessitated a broader theory of administrative state legitimacy. And playing out the chess match of anti-avoidance highlighted the limits of judicial power: when agencies respond strategically to new administrative law doctrines, courts will struggle to counter the agencies’ moves—especially when the clock is running and regulations that are in force only temporarily can have permanent practical effects.

With respect to all the major questions raised by major questions avoidance and anti-avoidance, our answers at this early stage are—and can be—only tentative. What already seems clear, though, is that careful and critical reflection on the empirical, normative, and jurisprudential dimensions of major questions avoidance and anti-avoidance can generate insights that travel far beyond the major question doctrine’s domain. Mapping and exploring the terrain of major questions avoidance and anti-avoidance can give us a clearer view of the theories that justify agency power and the extent to which that power can be constrained by the judiciary. In the end, major questions avoidance and anti-avoidance—whether or not they are desirable developments—have the virtue of offering us a new, richer, and more nuanced perspective on both the legitimacy and the adaptability of the modern administrative state.

98 S. Cal. L. Rev. 1497

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Daniel J. Hemel*

*Professor of Law, New York University School of Law. For helpful comments, the author thanks Beau Baumann, Blake Emerson, Barry Friedman, Jonathan Gould, Oren Tamir, and participants in workshops at the New York University School of Law and the University of Southern California Gould School of Law. Bhargav Tata provided excellent research assistance.

Liberty Before Party: The Courts as Transpartisan Defenders of Freedom

May 2025May 2025Yunsieg P. Kim*

Like many legislative acts in the United States, election laws are subject to judicial review, often by unelected judges with life tenure. This precipitates what Jacob Eisler calls the counterpopular dilemma. If the laws governing self-rule are dictated by courts that are unaccountable to the people—in the case of Article III judges, by design—they intrude upon democratic autonomy. But without arbiters who are resistant to popular pressure, elections can end up facilitating a mob rule or a tyranny in democratic disguise by enabling elites to manipulate democratic procedures for their own political gain. How, then, can judicial review of election laws be reconciled with democratic self-government?

Eisler’s book, The Law of Freedom: The Supreme Court and Democracy, provides a novel understanding of, and solution to, the counterpopular dilemma. According to Eisler, the counterpopular dilemma “is intractable” if the judicial role in elections is understood in conventional terms: “uniquely positioned outside typical political struggles, and thus especially well-suited to guarantee fair elections.” Instead of limiting freedom, courts should be viewed as advancing freedom, in two conflicting forms. The egalitarian view of freedom “seeks to afford all constituents equal opportunity to freely participate in self-rule.” Thus, the egalitarian view “demands some ‘levelling’ of inequities” that influence elections by, for example, limiting campaign spending. The libertarian view “prioritizes protecting individuals from state intrusion.” Thus, the libertarian view is that “state regulation of campaign finance . . . interfere[s] with personal liberty.” By casting the Supreme Court’s election law jurisprudence as a debate over how best to advance constituent freedom, Eisler provides a much-needed understanding of the Court as an institution in service of a common good—at a time when voters see it as motivated by political expediency, and rising public contempt is becoming an existential threat to judicial authority. I argue that, for Eisler’s theoretically illuminating perspective to become an operationally useful framework for delineating the courts’ role in elections, it must provide an objectively discernible standard for what constitutes a “minimal,” and thus tolerable, counterpopular intrusion into electoral design.

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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.

Major Questions, Common Sense?

September 2024September 2024Kevin Tobia,* Daniel E. Walters† & Brian Slocum‡

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning issues from vaccine mandates to environmental regulation. Yet, the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual clarity in “high-stakes” situations. Both linguistic arguments rely centrally on “common-sense” examples from everyday situations.

This Article tests whether these examples really are common sense to ordinary Americans. We present empirical studies of the examples offered by advocates of the MQD, and the results challenge the arguments that the MQD is a linguistic canon. Moreover, the interpretive arguments offered to legitimize the MQD as a linguistic canon threaten both textualism and the Supreme Court’s growing anti-administrative project.

INTRODUCTION

The Supreme Court’s most consequential interpretive canon is a new one: the major questions doctrine (“MQD”). The basic idea is as follows: when an agency undertakes a “major” policy action, the statutory authorization must be clear and specific (rather than unclear or general).¹ In several high-profile cases, the Court has used the MQD to strike down agency actions involving vaccine mandates,² environmental regulation,³ and student loan relief.⁴ Given this track record, no wonder critics have argued that the MQD poses an existential threat to the administrative state, since few statutes are likely to provide the requisite clear language, and what constitutes “majorness” is subjective and potentially applicable to a wide range of agency actions.⁵

Despite its undeniable influence, the MQD is undertheorized, and it remains a canon in search of a justification.⁶ Scholars and judges have splintered in their understanding of how the doctrine operates on statutory language.⁷ For instance, one advocate of the canon describes it as a requirement for a “clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies.”⁸ Two critics of the MQD have described it similarly as a rule requiring courts “not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain [major] agency policies.”⁹ In response, Justice Barrett in Biden v. Nebraska has denied that the MQD requires courts “to depart from the best interpretation of the text,” and claims that the canon is not a clear statement rule and does not require explicit congressional authorization of the “precise agency action under review.”¹⁰ These kinds of disagreements, while perhaps technical, influence how the doctrine is defended and employed, and even implicate its future as an interpretive canon.

So far, efforts to legitimize the doctrine have been unpersuasive. The canon is used primarily by self-identified textualists,¹¹ but critics (textualist and non-textualist alike) have alleged that the MQD is inconsistent with textualism, or even is anti-textualist, because it displaces the ordinary meaning of statutory text in the name of normative values.¹² In fact, the MQD’s rise coincides with a surge of skepticism among textualists and commentators about the validity of substantive canons generally.¹³ The Court’s use of the MQD even prompted Justice Kagan to retract her quip that “we’re all textualists now.”¹⁴ She now notes: “It seems I was wrong. The current Court is textualist only when being so suits it.”¹⁵ These critiques allege that the MQD inappropriately licenses textualists to depart from the best reading of statutory text in the name of values or norms. An ideal response for a textualist favoring the MQD would be some account of how the MQD determines the linguistic meaning of a statute.

Increasingly, textualists are making precisely this “linguistic” move. Some textualists now propose that the MQD is a linguistic interpretive canon, consistent with textualism.¹⁶ On this account, textualists remain committed to the ordinary reader’s understanding of language, with the MQD simply reflecting how ordinary people, exercising basic “common sense,” generally understand the meaning of statutes delegating authority to agencies.¹⁷ On this “linguistic” picture, normative or substantive values are not relevant to the canon or its application, and they certainly do not lead textualists to depart from the best reading of the text. Instead, the MQD is just like any other linguistic canon—it reflects only a generalization about how ordinary people use and understand language in context.¹⁸ This rebranding of the MQD as a linguistic canon has rapidly moved from the pages of law reviews¹⁹ to the Supreme Court.²⁰ There, Justice Barrett recently denied that the MQD is normatively driven and instead argued that it merely reflects ordinary people’s “common-sense” understanding of instructions, including those given by Congress.²¹

In this Article, we evaluate the MQD’s “linguistic turn” and subject its premises to empirical study. We study two key issues: (1) Does the MQD follow from ordinary people’s understanding of language and, more specifically, delegating instructions?; and (2) Do ordinary people interpret more cautiously or narrowly in “high-stakes” situations? The empirical results support answering “no” to both questions. Contrary to the MQD proponents’ contentions, the results indicate that ordinary people do not adjust their judgments of textual clarity according to the stakes of interpretation, and they interpret broad delegations broadly, even in situations in which Justice Barrett claims that “common sense” would dictate narrower interpretations of the scope of authorization.²²

Part I introduces the MQD and the two linguistic arguments that have been offered in defense of the canon. After briefly addressing the defense of the MQD as a substantive canon in Section I.A, we turn in Section I.B to the proposal that ordinary interpretation shifts in “high-stakes” contexts, and that this behavior justifies the MQD as a linguistic canon.²³ The high-stakes argument appeals to an example from analytic philosophy²⁴ and prior legal scholarship²⁵ that suggests that high-stakes contexts diminish ordinary knowledge. Thus, as a famous hypothetical illustrates, you might know that the town bank is open on the weekend when planning to deposit a small check with low stakes. In contrast, in a higher-stakes context (for example, if the check is for ten thousand dollars and must be deposited before Monday to avoid an overdraft), you may decide instead that you do not really know that the bank is open. Legal scholarship proposes that this is how ordinary people understand knowledge: ordinary knowledge is stakes sensitive.²⁶ More importantly for the MQD, an emerging argument builds on this premise to suggest that ordinary understanding of textual clarity is also stakes driven: in high-stakes contexts, a text is less clear.²⁷ As such, in those high-stakes (or “major”) cases, courts should require highly specific language to authorize agency action.

Section I.C introduces Justice Barrett’s separate proposal that ordinary language is context sensitive and anti-literal, and therefore a textualist faithful to the ordinary reader should adopt the MQD as a means to determine the best reading of statutory language.²⁸ Justice Barrett’s argument also appeals to an intuitive example: instructing a babysitter to “have fun with the kids” while handing him a credit card might literally permit the babysitter to take them on an overnight trip to an out-of-town amusement park (after all, doing so would be “fun”). But in context, ordinary people employ “common sense” and understand the literal meaning of the instruction to only permit the most reasonable set of applications of the instruction.²⁹ Ordinary people are therefore non-literalists, understanding general delegations to be more limited in meaning than their terms alone might suggest. As such, the argument goes, the MQD is “consistent with how we communicate conversationally,” making it a valid linguistic canon that reflects an interpretive commitment to ordinary people.³⁰

Justice Barrett’s argument is important and places her as a leader among the Court’s textualists; she is the only textualist advocate of the MQD who has offered a proposal to square the MQD with textualism. At the same time, the linguistic argument in her brief concurring opinion is not entirely clear. As such, we attempt to charitably reconstruct Justice Barrett’s defense as a workable argument—that is, one that derives the MQD conclusion from the babysitter hypothetical premise.

Part I contributes to the literature by explaining these two new arguments for the linguistic MQD in sufficient detail. Unpacking the arguments clarifies each argument’s theoretical challenges and empirical claims. Both arguments employ hypotheticals about how ordinary people interpret language but, significantly, support these hypotheticals with references to academic philosophy or judicial intuition; neither uses empirical evidence.

Parts II and III investigate these empirical claims, both by engaging with the existing empirical literature on high-stakes knowledge (much of it uncited by proponents of the linguistic MQD) and by conducting original survey experiments of both high-stakes interpretation and how ordinary people interpret instructions. Part II considers the claim that ordinary knowledge is stakes sensitive. This claim has been influential in philosophy,³¹ legal scholarship,³² and now the major questions debate.³³ Although philosophers claim knowledge is stakes sensitive, many existing studies report that stakes have little or even no effect on ordinary attributions of knowledge.³⁴ And, to our knowledge, no empirical study bears on the question of whether higher stakes reduce textual clarity (a related but different issue). The critical link in one version of the linguistic MQD argument is therefore entirely untested.

Part III presents studies designed to test the empirical claims of the linguistic MQD arguments. Our studies use the exact two cases offered by proponents of the linguistic MQD—the “bank case” and the “babysitter hypothetical”—to conduct original survey experiments. Overwhelmingly, ordinary people in our studies did not interpret these scenarios consistently with the empirical premises of the linguistic MQD arguments.

Part IV develops three sets of implications that follow from our empirical evidence and the textualist efforts to legitimize the MQD as a linguistic canon. These implications concern the empirical evidence for the linguistic MQD (IV.A), challenges that the linguistic MQD poses for textualism (IV.B), and the relationship between empirical evidence of how ordinary people view delegations and administrative law, including intriguing evidence that people are more concerned about underenforcement of instructions compared with overenforcement (IV.C).

In brief, the extant and new empirical findings do not support the linguistic MQD. Specifically, the findings count against the predictions of the two leading linguistic MQD arguments, using the exact cases offered in defense of the linguistic MQD. Of course, we are open to the possibility that study of further examples could weigh against our conclusions. But for interpreters deciding today whether to employ a “linguistic MQD,” there is insufficient empirical support and theoretical clarity to cast the MQD as a valid linguistic canon. Moreover, the results provide stronger support for a new counter-MQD: ordinary people understand general authorizing language as consistent with a broad range of reasonable actions that fall under the text’s meaning. Textualists committed to the “ordinary reader” and “interpretation from the outside” claim to follow those commitments to where they lead—and the current evidence favors an interpretive rule far from the current MQD.³⁵

I. THE MAJOR QUESTIONS DOCTRINE AND THEORIES OF ITS LEGITIMACY

The MQD has sparked a great deal of scholarly effort to specify exactly what the doctrine is and how it fits into traditional categories of interpretive doctrine. In this Part, we survey these efforts, many of which conclude that the MQD is a substantive, or normative, canon.³⁶ These classifications matter because substantive canons are increasingly questioned as being inconsistent with textualism.³⁷ Classifying the MQD as substantive (rather than linguistic) is tantamount to saying it is illegitimate or tenuous, at least on textualist grounds.³⁸ Perhaps not surprisingly, some textualist defenders of the MQD have not fully endorsed the idea that the MQD is a substantive canon.³⁹ In fact, as we discuss below, perhaps the most serious attempt to ground the MQD in interpretive law asserts that the doctrine is instead a linguistic, or semantic, canon.⁴⁰ In theory, at least, this move would legitimize the canon for textualists and everyone else because the doctrine would simply be folded into the relatively uncontroversial search for the ordinary meaning of delegating statutes.⁴¹

This pivot to a linguistic defense raises many questions, very few of which have been answered. After describing how the linguistic defense works, we then highlight theoretical limitations, open questions, and the broader implications of defending the MQD as a linguistic canon.

A. The Canonization of the Major Questions Doctrine

1. Historical Threads of the Major Questions Doctrine

The MQD is not entirely new; it is in the process of “metamorphosis.”⁴² Arguably, the first appearance of something like the MQD was in the plurality opinion in a 1980 case known as the Benzene Case.⁴³ In that case, the Occupational Safety and Health Administration (“OSHA”) was charged with promulgating standards that “most adequately assure[], to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.”⁴⁴ Rather than follow OSHA’s argument that the statute, fairly read, seemed to require it to “impose standards that either guarantee workplaces that are free from any risk of material health impairment, however small, or that come as close as possible to doing so without ruining entire industries,” the plurality opinion held that OSHA had only been delegated authority to regulate “significant” risks.⁴⁵

As Cass Sunstein notes, although the Court invoked the nondelegation doctrine and constitutional avoidance to arrive at this statutory interpretation, it is impossible to square what the Court did with the “(standard) nondelegation doctrine.”⁴⁶ The interpretation offered by OSHA, in addition to doing little violence to the text of the statute, would “sharply cabin” the agency’s discretion.⁴⁷ Sunstein suggests that the plurality opinion in the Benzene Case instead endorsed the novel idea that “without a clear statement from Congress, the Court will not authorize the agency to exercise that degree of (draconian) authority over the private sector.”⁴⁸

It was hardly clear at the time, however, that the Court was creating something called the “major questions doctrine”; in fact, that would not become clear until very recently. Instead, for several decades, the Court intermittently invoked similar, but often distinct, reasoning from the Benzene Case in regulatory cases involving “extraordinary” circumstances, all while leaving the precise theory behind the reasoning unstated. Paradigmatic of these invocations is FDA v. Brown & Williamson Tobacco.⁴⁹ In that case, the Food and Drug Administration (“FDA”) promulgated a rule regulating tobacco products as “drugs” under the Food, Drug, and Cosmetics Act. The Court applied the familiar Chevron two-step analysis and concluded, on the basis of an examination of legislative history, that Congress had unambiguously declined to give the FDA this power.⁵⁰ The Court added another reason for its conclusion, though, stating that “[i]n extraordinary cases . . . there may be reason to hesitate before concluding that Congress has intended . . . an implicit delegation.”⁵¹

As the “implicit delegation” phrase reveals, the Court explicitly couched its consideration of the “majorness” or “extraordinariness” of the power asserted by the FDA as part of the Chevron analysis. Thus, the MQD acted as a “carve-out” or “exception” to the ordinary rule that statutory ambiguities constitute implicit delegations that an agency is given primacy over courts to resolve, so long as it does so reasonably.⁵² Instead, when “extraordinary” questions are presented by the agency’s claim of delegated authority, the Court itself resolves the ambiguity at Chevron step one.⁵³

The Brown & Williamson opinion’s use of proto-MQD logic departed from the apparent logic of the Benzene Case in an important way. The Benzene Case left little room for an agency interpretation to survive once the doctrine was triggered. The only way to prevail was to point to clear statutory authorization that could not be limited by the Court to avoid the major implications of the agency’s interpretation. Sunstein calls this the “strong version” of the MQD.⁵⁴ By contrast, in Brown & Williamson, Sunstein sees a “weak version” that theoretically allowed an agency’s major action so long as the statutory interpretation could be endorsed by a Court engaged in independent (de novo) review without according the agency any deference.⁵⁵

As a practical matter, the weak version of the MQD seemed to win out for a while after Brown & Williamson, and on at least one occasion, an agency did win in a major questions case. In King v. Burwell, the Internal Revenue Service (“IRS”) interpreted the Affordable Care Act to make tax credits available even if an individual purchased health insurance on a federal insurance exchange, despite statutory language that limited tax credits to plans purchased through “an Exchange established by the State.”⁵⁶ Like in Brown & Williamson, the Court noted that there “may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”⁵⁷ Unlike in Brown & Williamson, however, the Court concluded that the agency had the power to issue the rule, even on a de novo interpretation of the statute. Although the Court’s interpretation of the statutory language at issue has been criticized,⁵⁸ the important point is that the “weak version” of the MQD—that is, an “exception,” or “carve-out” from Chevron deference—seemed to rule the day. The only open questions were about where, precisely, to locate the major questions exception: at Chevron step zero,⁵⁹ step one,⁶⁰ or step two.⁶¹

2. The Modern Major Questions Doctrine and Its Justification

Enter what Mila Sohoni calls the “major questions quartet.”⁶² If it was unclear exactly which version of the MQD existed before the quartet, the waters have become only murkier afterward. One thing is unmistakably clear though: The Court did not treat the MQD as a mere exception or carve-out from Chevron deference. Instead, it “unhitched the major questions exception from Chevron.”⁶³ In fact, the majority opinion in West Virginia v. EPA,⁶⁴ the leading case in the quartet, did not even mention Chevron in its elaboration or application of the MQD.⁶⁵ Instead, the Court offered an almost entirely new gloss on the doctrine:

“[I]n certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”⁶⁶

For the vast majority of commentators, these words have been taken to suggest that the current Court, post-quartet, thinks of the MQD as a particularly powerful form of substantive canon: a clear statement rule.⁶⁷ On this reading—which seems similar to the implicit use of the doctrine in the Benzene Case—Congress must have spoken with unmistakable clarity in order for agencies to have the “major” power they are claiming to have been delegated. If there is any ambiguity, and even if the agency has a “plausible” basis for concluding that it has the authority under applicable statutes, the agency cannot exercise that power. Some are not convinced the MQD is a clear statement rule and view it as a weaker substantive canon that resolves ambiguity.⁶⁸ Accordingly, when the MQD is applicable, any statutory ambiguities should be resolved against the agency’s assertion of power so as to vindicate “separation of powers principles.”⁶⁹ In any event, a common understanding is that the MQD is driven by a normative commitment to a limited role for administrative agencies in the legal system, and perhaps by a “delegation doctrine” that insists that agencies have no power unless it is affirmatively shown that Congress has granted it to them.⁷⁰

The MQD is inherently controversial as a substantive canon regardless of whether it is a clear statement rule or a tiebreaker canon. Simply by virtue of being a substantive canon, the “new MQD” is in tension with textualism. As Justice Kagan, a self-avowed textualist, puts it, there is some momentum for “toss[ing] [substantive canons] all out.”⁷¹ As she noted in her West Virginia dissent, channeling Karl Llewelyn, “special canons like the ‘major questions doctrine’” function as “get-out-of-text-free cards.”⁷² Recently, Benjamin Eidelson and Matthew Stephenson have exhaustively assessed “leading efforts to square modern textualist theory with substantive canons” and ultimately concluded that “substantive canons are generally just as incompatible with textualists’ jurisprudential commitments as they first appear.”⁷³ The MQD, insofar as it is a substantive canon, would not be spared.⁷⁴

Beyond these generalized concerns with substantive canons, some commentators have questioned whether the MQD satisfies basic expectations about the Court’s recognition and use of substantive canons, even assuming that they can sometimes be legitimate aids to interpretation. Simply put, the Court has not been at all clear about the source of the normative foundation of the MQD.⁷⁵ For Sohoni, formulating the MQD as a kind of constitutional avoidance rule fails because of the “Court’s failure to say anything about nondelegation”—a failure that “creates genuine conceptual uncertainty about what exactly it was doing in these cases.”⁷⁶ The currently prevailing nondelegation test asks merely whether Congress has provided a “reasonably intelligible policy” to guide an agency’s exercise of discretion.⁷⁷ That test would not have provided anywhere close to a “significant risk” of constitutional invalidity in any of the statutes examined in the major questions quartet.⁷⁸ Although Justice Gorsuch in his concurrence in West Virginia v. EPA suggested that the MQD is inspired by the nondelegation doctrine (and probably his preferred version of the nondelegation doctrine, which is not the law currently), the majority pointed more generally to “separation of powers principles.”⁷⁹ Some have inferred that the Supreme Court might be interested in developing constitutional principles demanding affirmative proof of delegation in certain circumstances—and that the MQD reflects this implicit constitutional project⁸⁰––but if so the Court has not been explicit. This uncertainty about the connection between constitutional principles and the MQD also seems to doom the MQD under Justice Barrett’s own test for the legitimacy of substantive canons within textualism, under which there must be a reasonably specific constitutional principle to which a constitutionally inspired substantive canon attaches.⁸¹ In other words, if the MQD is a substantive canon, its substance, or normative content, is not clear. Most substantive canons either reflect a broad societal consensus or are tied closely to constitutional law. The MQD at first glance has neither of these attributes.

3. The Modern Major Questions Doctrine’s Linguistic Turn

Perhaps not surprisingly, given the strong pushback that the MQD has received when it is formulated as a substantive canon, defenders of the MQD are increasingly suggesting that the MQD is not a substantive canon at all. Instead, proponents suggest it is a linguistic canon.

This rebranding is not as far-fetched as it might seem at first. “ ‘[L]inguistic’ validity and ‘substantive’ value are properties of canons.”⁸² The standard dichotomy between “linguistic” and “substantive” canons suggests that a canon has at most one property; but, it is conceptually possible for a canon to have both.⁸³ There is evidence that some canons that have long been treated as “substantive canons”—such as anti-retroactivity and anti-extraterritoriality—are also consistent with how ordinary people understand rules. For example, when a rule (especially a punitive rule) does not explicitly state whether it applies retroactively, prospectively, or both, people tend to understand it to apply only prospectively.⁸⁴ Insofar as textualism is guided by ordinary understanding of language,⁸⁵ textualists have good reason to consider such “substantive” canons as simultaneously linguistic ones. Even some tough critics of substantive canons like Eidelson and Stephenson show some openness to these arguments: “[T]he textualist’s reasonable reader . . . opens the door to recasting some seemingly substantive canons as simply default inferences that a reasonable reader would draw . . . . The presumption against extraterritoriality is a possible example.”⁸⁶

Could a similar linguistic argument support the MQD? Acknowledging that criticisms of the MQD as a substantive canon “are, to some if not a large extent, warranted,”⁸⁷ Professor Ilan Wurman recently rebranded the MQD as a linguistic canon.⁸⁸ Wurman argues that the MQD could be understood as motivated by a theory of linguistic usage about how interpretive uncertainty should be resolved rather than as importation of substantive or normative values into the interpretive enterprise. He appeals to prior work in philosophy and legal philosophy, which argues that “high-stakes” contexts lead to less knowledge or legal clarity.⁸⁹

Even more recently, Justice Barrett has proposed her own, separate linguistic argument for the MQD’s legitimacy. The Supreme Court has made the major questions quartet a quintet with its decision in Biden v. Nebraska. That case concerned President Biden’s 2022 proposal to forgive $10,000 to $20,000 in student loans for low to middle-income borrowers. Biden’s Department of Education traced the authority for their emergency loan relief to the HEROES Act, a 2001 law that grants the U.S. Secretary of Education the ability to “waive or modify” provisions related to federal student loans “in connection with a war or other military operation or national emergency.”⁹⁰ After Biden announced his administration’s loan forgiveness program as a response to the COVID-19 national emergency, several states challenged the program. That case reached the Supreme Court and divided the Justices 6–3 along conservative-liberal lines. Justice Roberts’s majority opinion proceeded with traditional textual interpretation, concluding that the government’s student loan relief is not within the statutory meaning of “waive or modify” any provision. But the opinion also referenced the major questions doctrine, as an alternative ground for the holding.

Justice Barrett wrote separately to argue that the MQD is not a substantive canon but rather “a tool for discerning—not departing from—the text’s most natural interpretation.”⁹¹ Candidly, and consistently with her prior writings on substantive canons,⁹² Justice Barrett conceded that the substantive canon version of the MQD might be “inconsistent with textualism” and therefore “should give a textualist pause.”⁹³ By grounding the MQD in how ordinary readers apply common sense in reading statutory text, Justice Barrett aims to put the MQD on more solid footing, particularly for textualists.

After the opinion, some suggested that Justice Barrett’s argument “mirrors” Wurman’s.⁹⁴ We disagree: the two arguments both present the MQD as a linguistic canon, but the arguments are distinct. Wurman appeals to high-stakes context and the resolution of interpretive uncertainty, while Barrett appeals to anti-literalism and contextual restriction concerning major actions (with nothing about high stakes). Thus, Wurman’s argument centers on “ambiguity” caused by high stakes, whereas Justice Barrett’s theory is about how ordinary people generally use “common sense” to interpret non-literally (with no mention of “ambiguity”). The next two Sections separately reconstruct Wurman’s (I.B) and Justice Barrett’s (I.C) linguistic arguments in detail and present some theoretical challenges for each.

B. The Major Questions Doctrine as a High-Stakes Linguistic Canon

One important line of work defending the “linguistic” MQD appeals to the philosophical and legal-philosophical literature on stakes and knowledge.⁹⁵ That theoretical literature proposes that knowledge is sensitive to high stakes: it could be true that one knows a proposition in a low-stakes context (for example, the bank is open) but does not know that proposition, given the same evidence, in a high-stakes context.

The legal literature about stakes and interpretation, including the linguistic MQD defense, takes this claim about knowledge to be important. But the relationship between knowledge and legal interpretation is not entirely clear. Roughly, the argument goes as follows: we are less likely to know a proposition when the practical stakes of its truth are raised, and similarly, we are less likely to assess that a text is clear when the practical stakes of its meaning are raised.⁹⁶

The linguistic defense of the MQD is clearly based in part on this philosophical literature about stakes and knowledge. Before interrogating the full argument, however, we must spell it out. Here we attempt to reconstruct the defense.

1. Reconstruction of the “High Stakes” Linguistic Defense of the Major Questions Doctrine

(1) [Empirical Premise 1: Stakes-Sensitive Knowledge]: The ordinary reader’s knowledge is sensitive to high stakes.⁹⁷

(2) [Empirical Premise 2: Stakes-Sensitive Clarity]: The ordinary reader’s understanding of textual clarity is sensitive to high stakes.⁹⁸

(3) [Definition: MQD Case]: In a MQD case, the agency’s statutory powers are defined in linguistic terms that are semantically clear but highly general. The agency is exercising “vast powers” of great economic/political significance and pointing to the statutory language as authorization.⁹⁹

(4) [Premise]: MQD cases involve a high-stakes context.¹⁰⁰

(5) [Textualist Premise]: Judges should interpret statutory language from the perspective of the ordinary reader.

(6) [Minor Conclusion, from 1, 2, 3, 4, 5]: In a MQD case, the text is unclear.

(7) [Premise]: If a text is unclear with respect to authorizing an agency’s action, it does not authorize that action.

(8) [Major Conclusion, from 6, 7]: In a MQD case, the agency’s action is not authorized.

Attempting to construct the argument fully and precisely reveals several interesting features and questions. First, consider the two “Empirical Premises” (1 and 2). It is unclear exactly what function the first Empirical Premise (about knowledge) serves. It is included in the argument above because it features repeatedly and centrally in Wurman’s (and Doerfler’s) scholarship on high stakes, but even if that Premise were false, Premise 2 alone could support the argument.

Why, then, does the “high-stakes” literature emphasize knowledge in addition to textual clarity? Perhaps because there is little data bearing on the truth of Premise 2, but there is rich, decades-old philosophical literature that seemingly supports Premise 1.¹⁰¹ As such, we understand the legal literature to be using Premise 1 as support for Premise 2: philosophers have concluded that knowledge is stakes sensitive, and this conclusion supports also concluding that textual clarity is stakes sensitive.

In Part III, we investigate the stakes-knowledge-clarity relationship empirically, but here we note some initial skepticism about the inference from knowledge to clarity. Law includes technical language,¹⁰² and as such, many ordinary people do not have direct knowledge of a law’s meaning. Nevertheless, this does not imply that a particular law is unclear, in the sense of being unclear to a legal expert or inherently indeterminate. Recent empirical work supports this point: ordinary readers understand law to include technical legal meanings, and they defer to legal experts to elaborate those meanings.¹⁰³ The mere fact that laypeople do not know the meaning of a law without further inquiry or assistance strikes us as an implausible basis for judges to treat the law as ambiguous or unclear.

Moreover, the “Minor Conclusion” (6) only follows with a very strong interpretation of the meaning of “sensitive to high stakes” (1) and (2). To conclude that “general” statutory language is unclear because of ordinary sensitivity to a high-stakes context, one must interpret (2) to mean that a high-stakes context eliminates clarity.

Wurman describes the MQD as limited to “resolving statutory ambiguities.”¹⁰⁴ This is a common way to describe a “tiebreaker” canon. We ultimately find this confusing insofar as Wurman also presents the MQD as a linguistic canon, a rule of thumb that is evidence of linguistic meaning. If “ambiguity” refers to linguistic ambiguity, an applicable “linguistic” canon would render the statute non-ambiguous. For example, in Lockhart the Court faced a linguistic ambiguity.¹⁰⁵ Lockhart was convicted under 18 U.S.C. § 2252(a) and faced a mandatory minimum due to an earlier conviction. The penalty increased if the defendant had a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”¹⁰⁶ That final modifier (involving a minor or ward) could modify all three noun phrases (aggravated sexual abuse, sexual abuse, and abusive sexual conduct) or just the last (abusive sexual conduct). The series qualifier canon instructs us to apply the modifier to all three noun phrases. The determination that the series qualifier canon applies qua linguistic canon is a decision that the linguistic meaning of the provision is determinate and has a specific meaning, not that it is ambiguous. If ambiguity persists—for example, if there is a competing linguistic canon that counsels in favor of the opposite interpretation—the Court might resolve ambiguity with some non-linguistic consideration, such as the rule of lenity.

Alternatively, perhaps the argument is that the MQD is “linguistic” in the sense that it represents how ordinary people believe that ambiguity should be resolved, and thus how ordinary people would choose to resolve disputes in MQD cases. But that would be an unusual sense of “linguistic.” Existing linguistic canons help determine the linguistic meaning of a provision; they do not enter the interpretive process after that meaning has been concluded to be indeterminate.

This might all seem pedantic, but it highlights a problem with this linguistic defense of the MQD. We have done our best to explain the argument in a clear form, but we are unsure that there is even a workable argument for the “high stakes” linguistic MQD that arrives at the Major Conclusion (8).

Beyond this general issue (that the logic of the argument itself is unclear), several of the premises are open to debate. For example, perhaps some of the Court’s major questions cases do not involve high stakes or sufficiently high stakes (Premise 4).¹⁰⁷ Premise 7 is also controversial: just because a text’s meaning is unclear does not necessarily imply that it should be interpreted against an agency delegation (perhaps instead, it should be interpreted with a presumption of judicial nonintervention).¹⁰⁸

Nevertheless, most of our attention in this Article is on the two Empirical Premises, 1 and 2. Whatever the argument is, it is clear that these two premises are central: the “high-stakes” argument repeatedly appeals to these claims.¹⁰⁹ If these premises—and especially the second premise—are empirically invalid, the entire argument is a nonstarter. Part II of this Article presents evidence bearing on Premise 1, and Part III presents original empirical studies bearing on both Premise 1 and Premise 2. To preview the findings, (1) although academic philosophers have long assumed that higher stakes reduce knowledge, many studies find that stakes have no effect on ordinary people’s knowledge attributions;¹¹⁰ (2) we find a very small effect of stakes on knowledge (far from sufficient to conclude that “the ordinary reader” is stakes-sensitive about knowledge), and no effect of stakes on linguistic clarity.¹¹¹

C. The Major Questions Doctrine as an Anti-Literal Linguistic Canon

A second argument for the “linguistic” MQD surfaced in summer 2023. Justice Barrett’s concurrence in Biden v. Nebraska proposes that the MQD has a linguistic basis in ordinary people’s anti-literalism and sensitivity to context.

The crux of the argument is an appeal to the predicted reaction of ordinary people to everyday situations, such as Justice Barrett’s “babysitter” hypothetical:

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to “make sure the kids have fun.”¹¹²

Justice Barrett explains that additional context could make a difference, including (1) “maybe the parent left tickets to the amusement park on the counter,” (2) “[p]erhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight,” (3) “maybe the parent mentioned that she had budgeted $2,000 for weekend entertainment,” (4) the “babysitter had taken the children on such trips before,” or (5) “if the babysitter were a grandparent.”¹¹³ Notably, not all of these are additions to the text of the statement. We are sympathetic to this view of non-text-based context, but it is arguably a significant departure from traditional text-focused textualism.¹¹⁴

Moreover, Justice Barrett argues that the babysitter hypothetical illustrates how “we communicate conversationally” and that the MQD merely represents “common sense” in a different context:

In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ” That clarity may come from specific words in the statute, but context can also do the trick. Surrounding circumstances, whether contained within the statutory scheme or external to it, can narrow or broaden the scope of a delegation to an agency.¹¹⁵

This justification coheres with Justice Barrett’s “ordinary speaker” approach to interpretation. In Congressional Insiders and Outsiders, Justice Barrett argues that judges should approach language “from the perspective of an ordinary English speaker—a congressional outsider.”¹¹⁶ This generally requires avoiding insider knowledge about Congress: “What matters to the textualist is how the ordinary English speaker—one unacquainted with the peculiarities of the legislative process—would understand the words of a statute.”¹¹⁷

While Justice Barrett’s babysitter example is intriguing, it is not immediately clear how it supports the MQD. A skeptic might read the babysitter-to-MQD argument as committing a “motte” and “bailey” fallacy, conflating one position that is very easy to defend (the motte) with one much harder to defend (the bailey). It is undeniable that context influences interpretation and it would not be surprising that ordinary people are more confident in delegation of power with additional supporting contextual evidence. If the babysitter had previously taken the children on trips ((4) from above) or the agency had a longstanding practice of developing new programs, that context would often make readers equally or more confident that a text delegating authority to that agent encompasses similar action.

But this observation (that context can lend further support to particular actions taken pursuant to a delegation) does not justify the MQD. Justice Barrett’s key claim about ordinary language is much stronger, something like: ordinary people understand general delegations to X to be limited to only the most reasonable ways to X, absent further textual or contextual support for X. Recall Justice Barrett’s argument about the babysitter’s trip: “But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful.”¹¹⁸ The central claim in the strong form of Justice Barrett’s argument is not merely that context matters but that absent supporting context, ordinary delegations are limited to the set of most reasonable applications of the instruction.

To appeal to the “motte” claim in support of the “bailey” claim is to trade an obvious fact about context to support a highly controversial claim about intuitive understanding of delegations. We do not, however, read Justice Barrett to make such a slippery move. There is a more charitable way to read her concurrence (that is, relying on the stronger key claim). This reading relies on an interesting and empirically testable question: When a text delegates an agent the power to X with general language, do people intuitively understand the delegation to be limited to only the set of the most reasonable/natural ways to X, or do they understand the delegation more broadly (even if not entirely literally)? For example, when a parent instructs a babysitter to “use this credit card to make sure the kids have fun this weekend,” does that authorize only the most reasonable actions (for example, ordering pizza, ordering a movie), or does it also authorize some actions that would be understood as less reasonable (for example, taking the kids to an amusement park)? Similarly, when Congress delegates to an agency, is the agency limited to only the set of most reasonable understandings (absent supporting context), or do people understand delegations to communicate a broader (if not quite literal) authorization?

Justice Barrett’s “linguistic defense” of the MQD leaves some questions open—the quotations above capture the bulk of the defense. Our formal reconstruction of the arguments follows.

1. Reconstruction of the “Anti-Literalism” Defense of the Major Questions Doctrine

(1) [Definition: Ordinary Majorness]: For a given rule, an action is “major” if the ordinary reader understands it, absent additional context, as not among the set of most reasonable ways to follow the rule.¹¹⁹

(2) [Definition: MQD Case]: In a MQD case, the agency’s statutory powers are defined in linguistic terms that are semantically clear but highly general. The agency is exercising “vast powers” of great economic/political significance and pointing to the statutory language as authorization.

(3) [Empirical Premise: MQD Cases Involve Ordinary Majorness] The ordinary reader takes MQD cases to involve a “major” action (for example, in the MQD cases, the ordinary reader takes the contested action, absent additional context, as not among the most reasonable ways to follow the rule).

(4) [Textualist Premise]: Judges should interpret statutory language from the perspective of the ordinary reader.¹²⁰

(5) [Empirical Premise]: Absent additional context, the ordinary reader understands rules that delegate power to an agent to have significant contextual limitations against all “major” actions; such a rule’s communicative content is limited to authorizing only the set of most reasonable actions.

(6) [Conclusion]: In MQD cases, absent additional context, judges interpreting delegations should interpret delegations to exclude all major actions.

II. PHILOSOPHICAL AND EMPIRICAL BACKGROUND

The previous Part introduced the two linguistic MQD arguments, one concerning high stakes and one concerning anti-literalism. This Part provides background from philosophy and empirical studies related to these arguments.

Some of the questions at the heart of the “high-stakes” MQD defense have been long debated by epistemologists (philosophers who specialize in the study of knowledge). More recently, the same questions have been studied empirically by psychologists and experimental philosophers.¹²¹ Much of this work challenges a premise in the high-stakes MQD argument: although philosophers have claimed high stakes impact knowledge, high stakes have (at most) a small effect on ordinary judgments of knowledge. Section II.A reviews this research.

Section II.B provides background related to Justice Barrett’s claims about context and anti-literalism. Context matters in interpretation, and recent research has found that ordinary people understand law in line with anti-literalism, as Justice Barrett notes. However, there is no extant research that supports the stronger empirical premise in the anti-literalism argument.

A. Stakes and Knowledge

1. Philosophical Epistemology of Stakes and Knowledge

For decades, philosophers have evaluated stakes’ impact on knowledge with hypothetical “thought experiments.”¹²² Consider a pair of cases as an example.¹²³ The only differences between cases are highlighted in italics.

(1) Low-Stakes Bank Deposit:

Bob and Jane are considering whether to stop at the bank to deposit a check on a Friday. Nothing turns on whether they deposit the check in the next week. The line is long, and they consider coming back on Saturday. Bob says that he remembers that the bank was open last Saturday, and Jane replies that banks sometimes change their hours. Bob says, “I know the bank will be open tomorrow.”

In this case, many philosophers claim that Bob knows that the bank will be open tomorrow.¹²⁴ Now consider a slight variation on this case.

(2) High-Stakes Bank Deposit:

Bob and Jane are considering whether to stop at the bank to deposit a check on a Friday. It is critical that the check is deposited on one of the next two days. On Sunday, there will be a large debit to Bob’s account, which does not currently have enough funds, and the check is Bob’s only means to cover that expense. The line is long, and they consider coming back on Saturday. Bob says that he remembers that the bank was open last Saturday, and Jane replies that banks sometimes change their hours. Bob says, “I know the bank will be open tomorrow.”

In this case, philosophers say that Bob’s statement is false.¹²⁵ He does not know the bank will be open tomorrow.

The epistemology literature has taken philosophers’ shared reactions to these cases as intuitive data. And philosophers have offered different theories to make sense of that data. These are rich and complicated philosophical debates, which this Article does not have the space to rehearse or explore deeply.¹²⁶ Our principal interest is in how this work has informed recent debates in legal philosophy.

Legal-philosophical scholarship has drawn on this work in epistemology in support of the claim that high-stakes legal interpretation differs from lower-stakes interpretation. Ryan Doerfler suggests that high-stakes contexts influence textual clarity,¹²⁷ and Wurman piggybacks on this premise to argue that stakes sensitivity supports the MQD.¹²⁸ Importantly, these legal applications appeal to “ordinary speakers”¹²⁹ and “ordinary epistemic justification,” especially reactions to the bank cases described above.¹³⁰ A starting premise is that, for ordinary speakers of ordinary language, stakes impact knowledge; this is typically illustrated by the low- and high-stakes bank example.

2. Do Stakes Impact Knowledge? Empirical Perspectives

Despite the pedigree of the stakes-knowledge literature, there is one big problem: many empirical studies report that stakes have no effect on ordinary attributions of knowledge. As Joshua Knobe & Jonathan Schaffer explain, “[l]ooking at this recent evidence, it is easy to come away with the feeling that the whole contextualism debate was founded on a myth. The various sides offered conflicting explanations for a certain pattern of [stakes-sensitive] intuitions, but the empirical evidence suggests that this pattern of intuitions does not exist.”¹³¹

Much of this evidence comes from “experimental philosophy.” Rather than relying on the intuitions of philosophers (some of whom might have a lot at stake in intuitions about contextualism), experimental philosophers examine the understandings of ordinary people. Moreover, they often conduct experiments, which present different participants with different versions of the same scenarios, varying in only one respect (for example, higher stakes). This allows experimenters to draw inferences about whether certain factors (for example, stakes) affect people’s judgments in these cases. Some readers may be familiar with experimental philosophy’s testing of the well-known “trolley dilemma.”¹³² Many have also poured substantial effort into testing the influence of stakes on knowledge, especially in the “bank cases.”

Do stakes affect lay attributions of knowledge? Many studies report no.¹³³ As one important example, consider the study conducted by David Rose and other contributing authors. They gave participants versions of the bank case described at the start of this Section. They collected data from over 3,500 participants across 16 countries. The vast majority of countries show no significant effect, and for the few that show an effect, the size is very small (about a 10% difference in low- versus high-stakes cases). The researchers conclude that, overall, there is “virtually no evidence that stakes affect knowledge attribution.”¹³⁴

Other papers report a complicated pattern for other epistemic notions besides knowledge. For example, Mark Phelan finds no effect of stakes on judgments about how (epistemically) confident someone should be in a between-subjects study, but he finds an effect in a within-subjects study (when the same participant considered matched cases).¹³⁵

Other studies report stakes effects for more complicated (and perhaps controversial) measures of knowledge. As an example, consider Alexander Dinges and Julia Zakkou’s study.¹³⁶ This study instructed participants to consider a scenario in one of three versions. All scenarios began with the following:

Picture yourself in the following scenario:

You and Hannah have been writing a joint paper for an English class. You have agreed to proofread the paper. You’ve carefully proofread the paper 3 times and used a dictionary if necessary. You spotted and corrected a few typos, but you didn’t find any typos in the last round anymore.

You meet up with Hannah to finally submit the paper. Hannah asks whether you think there are no typos in the paper anymore. You respond:

“I know there are no typos anymore.”

At this point, . . .

Then, the scenarios proceeded in either a “neutral,” “stakes,” or “evidence” version. The “stakes” manipulation sought to change the practical significance of the knowledge claim, while the “evidence” manipulation sought to change the evidence base on which the knowledge claim rests.

Neutral: . . . Hannah reveals to you for the first time that she’s always been a big fan of the Backstreet Boys. You’ve never liked the Backstreet Boys, but since you like Hannah, you promise to listen to a few songs she particularly recommends. You doubt that it will change your mind but agree that it doesn’t hurt to give it a try. As you’re about to submit the paper, Hannah asks whether you stand by your previous claim that you know there are no typos in the paper. You respond:

Stakes: . . . Hannah reveals to you for the first time that it is extremely important for her to get an A in the English class. Her scholarship depends on it, and she’ll have to leave college if she loses the scholarship. If there is a typo left in the paper, she’s very unlikely to get an A, so it is extremely important to her that there are no typos in the paper. As you’re about to submit the paper, Hannah asks whether you stand by your previous claim that you know there are no typos in the paper. You respond:

Evidence: . . . Hannah reveals to you for the first time that she’s secretly read your previous term papers and always spotted lots of typos in them even when you said you had carefully proofread them. She apologizes for not telling you earlier. You are slightly disappointed but forgive her. Hannah is a good friend, and you appreciate that she was honest with you in the end. As you’re about to submit the paper, Hannah asks whether you stand by your previous claim that you know there are no typos in the paper. You respond:

All scenarios ended with: “I do” or “I don’t,” asking participants to pick the response they would be more likely to give.

Using this “stand by” question, the researchers found a difference. In the “Neutral” version, 94% of participants stood by their knowledge claim (“I do”); in the “Stakes” version, 76% of participants stood by; and in the “Evidence” version, 42% stood by. The researchers found similar results in a bank case. The Neutral-Stakes difference suggests that stakes can impact knowledge attributions. The Stakes-Evidence difference indicates that other factors (for example, an attributor’s evidence base) also matter and can have a larger effect than stakes. This difference (76% versus 42%) is one of the larger differences reported in the literature.¹³⁷

It is not clear if agreement with “standing by” a claim is equivalent to agreement with knowledge of a claim. To “stand by” a claim calls to mind the action associated with the claim (that is, going to the bank today or not). From a cost-benefit perspective, stakes are relevant to action. The rising expected cost of failing to act in light of a possible bank closure or paper typo is relevant to a rational actor’s decision-making. Arguably, some of the observed small impacts of stakes on lay attributions of knowledge could be reflecting lay participants’ actionability judgments: in the high-stakes context, Bob’s knowledge has not changed, but whether he should go to the bank has changed.

Overall, the evidence is mixed concerning whether stakes impact ordinary knowledge attributions. Historically, many philosophers had stakes-sensitive knowledge intuitions, predicted that others would, and developed complex theories about those effects.¹³⁸ Yet, a large number of empirical studies of thousands of ordinary participants, across many languages and cultures, have found no impact of stakes, or only a very small effect, on knowledge.¹³⁹ Very recently, one new study has reignited the debate, finding some support for the impact of stakes on epistemological judgments.¹⁴⁰ Yet, another recent study reports that stakes do not affect judgments about knowledge¹⁴¹ but do affect judgment about action.¹⁴² In total, there is evidence pointing in both directions. Resolving the debate will require further empirical research as well as systematic theorizing of the seemingly conflicting empirical results.

Consequently, it remains far from settled that high stakes reduce knowledge for “the ordinary person.” Most studies have found that stakes do not impact knowledge in this way. And even for the studies that do report an effect, it is small. If 95% of participants evaluate that there is knowledge in a low-stakes case, and 80% evaluate that there is knowledge in a comparable high-stakes case, does this imply that the “ordinary person” has stakes-sensitive knowledge intuitions? Advocates of ordinary stakes sensitivity need to spell out why stakes-sensitivity manifesting in 10–15% of ordinary participants implies that the ordinary reader has stakes-sensitive knowledge.

The claim that high stakes impact knowledge figures prominently in the argument for a high-stakes linguistic MQD.¹⁴³ Extant legal literature has drawn heavily on this claim in supporting that “high-stakes” interpretation differs from lower-stakes interpretation. In doing so, it has drawn primarily from hypotheticals in academic philosophy (the “bank cases”) and intuitions about those hypotheticals offered by academic philosophers. Insofar as the legal literature concerns stakes’ impact on ordinary people’s knowledge attributions,¹⁴⁴ those legal debates would benefit from greater engagement with the large body of recent empirical work summarized in the previous Section.

3. From Philosophy to Legal Philosophy

The previous two Subsections have introduced the debate about stakes and knowledge in epistemology. But it is important to recall that the connection of this debate to legal philosophy requires another step. For example, Doerfler proposes a connection between “clarity” or “plain meaning” of a statute and knowledge about the statute’s meaning: “[T]o say that the meaning of a statute is ‘clear’ or ‘plain’ is, in effect, to say that one knows what that statute means.”¹⁴⁵ The logic appears to be that clarity attributions are a subset of knowledge claims, such that a property demonstrated to affect knowledge claims should transitively affect clarity claims.

Ultimately, this relationship between knowledge and clarity is outside the scope of our Article (the relevant question for the linguistic MQD is stakes’ impact on clarity). However, there are some philosophical questions to raise about the proposed relationship between clarity and knowledge. One, which we described earlier, concerns technical meaning. A layperson might not know what a statute means because it is technical, yet the statute may not be “unclear” to that person in the relevant sense of clarity (that is, ambiguous). As another difference, consider factivity. Philosophers often propose that knowledge is factive: I know p only if p. But it is not obvious that clarity is factive. The meaning of a statute might appear clear (that is, not ambiguous) to an agent while the agent is wrong about the statute’s meaning, and thus the agent lacks knowledge of the statute’s meaning. Such a case would be a counterexample to the claim that an agent knows what a statute means if and only if the meaning of the statute is clear.

Most importantly, the empirical evidence about ordinary attributions of knowledge reviewed here—to the extent that it even does support stakes sensitivity—does not necessarily extend to ordinary determinations of whether statutory text is clear. The studies to date mostly used the bank case, but the bank case presents no rule to which clarity judgments might attach. It might be possible that the clarity of rules is reduced for ordinary people in higher-stakes contexts. Indeed, it is theoretically possible that clarity judgments about textual rules are more sensitive to stakes than knowledge more generally. But it is just as possible that there is a breakage: that is, that clarity claims are not simply a subset of knowledge claims but a special and different kind of knowledge claim. However, as far as we are aware, these are entirely untested empirical hypotheses. Without any empirical evidence specific to clarity claims, it would not be possible to bootstrap ordinary stakes-sensitive clarity from ordinary stakes-sensitive knowledge (moreover, as we have argued, ordinary stakes-sensitive knowledge is also empirically dubious). Part III therefore tests this clarity claim.

B. Context and Anti-Literalism

Justice Barrett’s concurring opinion in Biden v. Nebraska offers a different argument for the MQD as a linguistic canon. For Justice Barrett, the MQD simply reflects “common sense” inferences about how broader context restricts language’s (literal) meaning.¹⁴⁶ Justice Barrett illustrates this with the babysitter example, claiming that ordinary people understand a delegation to a babysitter to have implicit limits (although a babysitter’s attempt to transgress those normal limits might be allowed by a supplemental clear authorization). This, Justice Barrett suggests, is precisely how an ordinary reader would read a statute delegating authority to an agency, and therefore a canon requiring a clear statement from Congress is justified.¹⁴⁷

1. Anti-Literalism and Context in Ordinary Language

Anti-literalism is an important feature of ordinary language. Consider François Recanati’s discussion of the “You are not going to die” example from Kent Bach:

[Imagine] a child crying because of a minor cut and her mother uttering . . . [“you are not going to die”] in response. What is meant is: “You’re not going to die from that cut.” But literally the utterance expresses the propositions that the kid will not die tout court—as if he or she were immortal. The extra element contextually provided (the implicit reference to the cut) does not correspond to anything in the sentence itself; nor is it an unarticulated constituent whose contextual provision is necessary to make the utterance fully propositional.¹⁴⁸

This example helpfully illustrates that we often understand propositions anti-literally, in light of context, and that the relevant context need not come from the statement itself. The very same words “you’re not going to die,” convey a different meaning when uttered after a child gets a cut than they would in some other context where the literal meaning would be the correct meaning.

The powerful influence of context is not limited to anti-literalism. Extratextual context can also disambiguate. As an example, consider the statement “Do not take drugs and alcohol.” Does this mean “Do not take either one?” Or does it mean “Do not take the two together?” The answer varies across contexts.

If this rule were presented in the context of a substance abuse counseling session, our extratextual knowledge about that session leads us to understand this text [to prohibit each individually]: Don’t take drugs; don’t take alcohol. However, if this rule were presented in the context of a patient’s annual physical, in which the doctor prescribed cholesterol-reducing medications, our extra-textual knowledge about that session encourages [understanding the rule to prohibit the combination].¹⁴⁹

2. Anti-Literalism in Ordinary Understanding of Legal Rules

Justice Barrett’s argument is attractive in its appeal to context and anti-literalism. And Justice Barrett is not the only modern textualist to appeal heavily to anti-literalism; Justices Gorsuch and especially Kavanaugh have also called attention to the perils of overliteral interpretation.¹⁵⁰

For modern textualism, this is a welcome development. Analysis of the (linguistic) meaning of legal rules should attend to context and exceed pure literalism. As one example, consider the linguistic canons. Many linguistic canons reflect intuitive contextual restrictions from literal meaning. “No cars, trucks, or other vehicles may enter the park” might literally prohibit bicycles from the park, as most ordinary people take a bicycle to be a vehicle.¹⁵¹ However, the principle of ejusdem generis instructs interpreters to construe the broad, catchall term “vehicle” in light of the listed items (“cars,” “trucks”).¹⁵² Even if laypeople are not familiar with the name “ejusdem generis,” they intuitively apply this kind of reasoning when analyzing both legal and ordinary rules.¹⁵³

People also apply other types of contextual restrictions from literal meaning. This includes some contextual rules that are not currently recognized by courts as linguistic canons. For example, people understand that universal quantifiers like “any” often do not mean literally any.¹⁵⁴ If this tendency were at least as systematic in ordinary understanding as those underlying conventional linguistic canons (for example, the tendency to restrict catchall terms as ejusdem generis reflects), a textualist committed to the ordinary reader should employ those new canons (for example, the “quantifier domain restriction canon”).

Recent legal scholarship has also asked whether thinking about context and anti-literalism might reveal that some “substantive” canons are also linguistic canons.¹⁵⁵ Some clear statement rules—such as anti-retroactivity and anti-extraterritoriality—could be seen as linguistic canons, based on our understanding of context. Taken literally, many statutes would seem to apply at all times, in all places.¹⁵⁶ But people understand statutes to communicate temporal and geographical restrictions: while there is some division among laypeople, overall, people tend to understand rules to apply only prospectively, and only territorially.¹⁵⁷

Textualists may rhetorically privilege the “ordinary reader” and express support for anti-literalism, but they have not yet adopted many of these suggestions. For instance, no textualist has adopted an anti-literal “quantifier domain restriction canon” or theorized anti-retroactivity as a linguistic canon (although it is a long-standing clear statement rule). These context-sensitive rules are relatively robust and systematic and are supported by empirical evidence. We have reservations about a textualism that ignores such systematic patterns of anti-literalism while also freely adopting “ad hoc” anti-literal arguments related only to particular cases. On this score, Justice Barrett’s concurrence in Biden v. Nebraska is commendable in hypothesizing about a broader contextual principle that generally guides ordinary understandings of delegations (that is, a principle applying across cases, not an ad hoc appeal to context and anti-literalism related only to the authorization of emergency student loan relief). Whether Barrett’s contextual principle is systematic and empirically supported is a separate question.

Anti-literalism and contextual restriction are powerful ideas that accurately reflect language usage, but if textualists have no theory about when one can appeal to them, there is a danger that textualists can freely frame different readings as “literal” and “anti-literal,” choose liberally among them, or simply ignore non-literal meanings when doing so is convenient.¹⁵⁸ The claim that “in context,” a text does not “literally” mean what it says is also a powerful way for motivated interpreters to escape a text’s clear meaning.

Context matters. But if textualists have no theory about what counts as context and when they must appeal to it, ad hoc appeals to context are like “looking out over a crowd and picking out your friends.”¹⁵⁹ Except here, the “friends” are not even limited to preexisting sources; they also include entirely novel hypothetical examples generated by the judge.

3. Contextual Restriction of Delegations?

As Section II.B argued, the “anti-literalism” argument of the linguistic MQD needs a stronger premise than simply “people sometimes understand language non-literally.” The mere fact that “you are not going to die” has a nonliteral meaning does not justify the MQD.

The premise necessary to the argument involves a new claim about ordinary understanding of delegations. Justice Barrett proposes that there is some MQD-like principle that is part of ordinary people’s common sense, concerning the limited authorization from a general delegating instruction. It is for this reason that she relies on the babysitter hypothetical, an anti-literalism intuition-pump about an ordinary instruction that delegates power to an agent. General delegation language, Justice Barrett posits, has an anti-literal limitation. Unless there is further specific authorization, that general language is understood to be limited to only the most reasonable actions.

This is an interesting and empirically testable proposition: ordinary people understand general delegations to be limited to only the most reasonable actions falling under the language of the delegation. As far as we know, there is no empirical study that has examined this question. We present a new study to do so in Section III.B.

III. NEW EMPIRICAL EVIDENCE

This Part tests key empirical claims at the core of the linguistic arguments for the MQD. In both tests, we seek to reduce our researcher degrees of freedom (that is, eliminate cherry-picking scenarios) by relying on the exact cases that advocates of the linguistic defense offer: the high-stakes “bank case” and the “babysitter hypothetical.”

Section III.A presents a study that tests whether ordinary people’s judgments about knowledge are lowered in high-stakes contexts (using the bank case). It also examines, for the first time, whether people’s understanding of a rule is impacted: Are rules perceived as less clear in high-stakes contexts?

Section III.B presents a study to examine the babysitter case: a parent instructs the babysitter to use a credit card to “make sure the kids have fun.” Do ordinary people understand this instruction to license taking the children on a road trip to an amusement park, or do they understand it to be limited to only more reasonable actions?

Section III.C responds to the primary two objections to the studies that have appeared in print since we first publicized this Article’s empirical findings.

A. Do High Stakes Reduce Knowledge and/or Clarity? The Bank Case

1. General Overview

The first study examined whether (high) stakes reduce ordinary attributions of (1) knowledge and (2) clarity of rules. We randomly assigned participants to either a low-stakes¹⁶⁰ or high-stakes¹⁶¹ condition of the bank case. In each condition, participants read a version of the famous bank case, in which Bob and his wife discuss whether a bank is open on Saturday. Participants answered two types of knowledge questions, drawn from the previous literature.¹⁶² The basic knowledge question asks:

In your personal opinion, when Bob says “I know the bank will be open” is his statement true?

Yes, Bob’s statement is true.

No, Bob’s statement is not true.

Defenders of context sensitivity have argued that this question more accurately tracks debate about contextualism than questions that simply ask participants to rate “knowledge.”¹⁶³ The “strict” knowledge question asks:

In your personal opinion, which of the following sentences better describes Bob’s situation?

Bob knows that the bank will be open on Saturday.

Bob thinks he knows that the bank will be open on Saturday, but he doesn’t actually know it will be open.

Next, we randomly assigned participants to one type of rule: Clear, Ambiguous 1, Ambiguous 2, Unclear. The study presented a vignette explaining that Bob’s wife now used her phone to find the bank’s policy on its website. We randomly presented participants with one of four types of rules:

[Clear] The bank is open on Saturdays.
[Ambiguous 1] The bank is closed on Sundays.
[Ambiguous 2] The bank is closed only on Sundays and federal holidays.
[Unclear] The bank is open during regular business hours.

Participants rated whether the rule is clear or unclear concerning whether the bank is open on Saturday:

Now imagine that Bob’s wife uses her phone to search for the bank’s policy. She finds a website for the local bank branch. The website’s text states: “[RULE]” In your personal opinion, is this rule’s meaning clear or unclear concerning whether the bank is open on Saturday?

Clear: The bank is open on Saturday.

Clear: The bank is closed on Saturday.

Unclear.

In sum, we experimentally varied two factors: Stakes (low, high) and Rule Type (Clear, Ambiguous 1, Ambiguous 2, Unclear). This study examines whether Stakes affect lay judgment of knowledge (basic and strict). The study also examines whether Stakes affect lay judgment of a rule’s clarity across hypothesized clear, ambiguous, and unclear rules.

2. Methodological Details

All study materials, hypotheses, exclusion criteria, and primary analyses were preregistered at Open Science.¹⁶⁴ The study data is also available at the same site. A total of 501 participants were recruited from Prolific.co and compensated $1.00 ($12.00/hr) for a 5-minute task. To be eligible, participants must have completed at least 10 tasks on Prolific, with a 100% approval rating, and they must currently reside in the United States.

Within the study, there were several check questions. First was a simple attention check question, which asked participants to select the answer “purple” in a long list of colors. There was also a manipulation check, clearly labeled as an “attention check”: “Attention check question: According to the story, which of the following statements is correct?” The options were “it is very important that Bob and his wife deposit their money” [correct answer in high-stakes condition] and “it is not very important that Bob and his wife deposit their money” [correct answer in low-stakes condition]. Later in the study, there was a third multiple choice attention check: “Alex is taller than Sam, and Sam is taller than John. Who is the shortest?” [correct answer = “John”; incorrect answers = “Alex,” “Sam,” “They are all the same height”]. Finally, all participants were asked to complete a CAPTCHA. Participants who answered any one of these questions incorrectly were excluded from the analyses. Thirty-two (out of 501; i.e., 6%) participants were excluded from these criteria.

3. Results

A total of 469 participants were included in the data analysis (mean age = 39.58; 50% men, 48% women, 1% non-binary).

A binomial logistic regression revealed an effect of Stakes on knowledge. Participants attributed knowledge less in high-stakes cases (prob. = 0.86, 95% CI = [0.81, 0.90]) than in low-stakes cases (prob = 0.95, 95% CI = [0.91, 0.97]), odds ratio = 0.35, 95% CI = [0.18, 0.70], z = -2.99, p = 0.003.¹⁶⁵

Figure 1.

Figure 1. Percentage attributing knowledge (top panel) and strict knowledge (bottom panel), in low- and high-stakes bank cases. In the high-stakes case, knowledge attributions were slightly (about 10%) lower. Overall, the majority of participants attributed knowledge in low- and high-stakes cases.

A binomial logistic regression revealed an effect of Stakes on strict knowledge. Participants attributed strict knowledge less in high-stakes cases (prob. = 0.66, 95% CI = [0.60, 0.71]) than in low-stakes cases (prob = 0.78, 95% CI = [0.72, 0.83]), odds ratio = 0.55, 95% CI = [0.37, 0.83], z = -2.85, p = 0.004.¹⁶⁶

A multinomial logistic regression examined the effect of Stakes (low, high) and Rule Type (Clear, Ambiguous 1, Ambiguous 2, Unclear) on judgment of the bank rule’s clarity (clearly open, clearly closed, unclear). First, consider the effect of Stakes. Comparing clearly open and clearly closed responses, there was no effect of Stakes, z = 0.06, p = 0.956. Comparing clearly closed and unclear responses, there was no effect of Stakes, z = 0.38, p = 0.705. Next, consider the effect of Rule Type. Comparing clearly open and clearly closed responses, there was a significant effect of the clear versus unclear rule, z = -3.07, p = .002. There was no significant effect among the other rule types, |zs| < 0.21, ps > 0.8. Comparing clearly closed and unclear responses, there were no significant rule type effects, |zs| < 0.2, ps > 0.85. Finally, there were no significant Stakes * Rule Type interactions, |zs| < 0.41, ps > 0.68.¹⁶⁷

Figure 2.

Figure 2. Percentage attributing a clear meaning (open or closed) or unclarity for four different rules in low- and high-stakes cases. There were large and significant differences among the rules’ perceived meaning: the “Obviously Clear” and “Ambiguous 2” rules were generally understood to mean clearly open; the “Ambiguous 1” rule was understood to be unclear or mean clearly open; and the “Obviously Unclear” rule was unclear. However, there was no impact of high stakes on clarity judgments for any type of rule, whether the rule was clear (for example, Obviously Clear), ambiguous (for example, Ambiguous 1), or unclear (for example, Obviously Unclear).

4. Discussion

The results regarding stakes and knowledge are consistent with the prior literature. Some previous studies have found a small effect of stakes on knowledge in the United States.¹⁶⁸ Here, we find a similar small effect: In the low-stakes bank case, 95% attribute knowledge, but in the high-stakes bank case, this number drops to 86%. The “strict knowledge” measure reflects a similarly sized difference (78% versus 66%).

i. Is Knowledge “Sensitive” to Stakes?

The empirical results clarify the importance of refining this philosophical question: What is it for ordinary knowledge to be “sensitive to stakes”? One (weak) interpretation is that in some circumstances, for some people, stakes affect knowledge attributions. A stronger interpretation is that for most or all people, there are some cases in which knowledge is lost in high-stakes contexts. The strongest interpretation is that in many or most circumstances, high stakes defeat knowledge (for many or most people).

Once we have greater philosophical clarity about what it means to say knowledge is sensitive to stakes, we can analyze those theses in light of the empirical results. The results here straightforwardly provide support for the weak interpretation: the high-stakes manipulation affects (some participants’) attributions of knowledge. But the results do not support the “stronger” or “strongest” interpretations. The vast majority of participants attributed knowledge in low- and high-stakes cases. And even for the “strict knowledge” question, most participants still judged that there was (strict) knowledge in the high-stakes scenario. In other words, for the vast majority of participants, stakes did not impact knowledge.

ii. Do High Stakes Reduce Clarity?

The results provide a more straightforward answer to this question. The high- versus low-stakes manipulation had no impact on whether people understood rules to be clear or unclear. Importantly, we used four types of rules, which varied in their basic level of clarity. With respect to whether the bank is open Saturday, “the bank is open on Saturday” is obviously clear; “the bank is closed on Sunday” is ambiguous; “the bank is closed only on Sundays and federal holidays” is ambiguous;¹⁶⁹ and “the bank is open during regular business hours” is unclear. For all of these rules, high stakes did not increase the base level of unclarity.¹⁷⁰

B. Ordinary Understanding of Delegations: The Babysitter Case

The second study examines how ordinary Americans understand delegations in an ordinary context. This Study takes inspiration from Justice Barrett’s recent concurrence in Biden v. Nebraska, which offered a new linguistic defense of the MQD.

1. General Overview

The second study examined Premise 5 from Justice Barrett’s argument, the second empirical premise: When assessing whether an agent has followed or disobeyed a rule granting authority to perform some actions, do ordinary people restrict the rule’s literal meaning to only the set of most reasonable actions (absent additional context)?¹⁷¹ Study 2 examines this question by presenting participants with an ordinary rule granting authority, followed by one of five possible actions. These five actions varied in their anticipated reasonableness, and we examined whether participants evaluated each as following or violating the rule.

As in Study 1, we sought to minimize our researcher degrees of freedom by relying on existing and important test cases that have been offered by advocates of the linguistic MQD. For Study 2, we chose Justice Barrett’s “babysitter” hypothetical, as well as Justice Barrett’s proposed “major” action: a babysitter taking children to an amusement park in response to the instruction “Use this credit card to make sure the kids have fun this weekend.”

We randomly varied the conventional gender of the parent’s name (Patrick or Patricia) and babysitter’s name (Blake or Bridget). This did not affect rule violation judgment. Below is the text of the scenarios with the names Patricia and Blake:

Imagine that Patricia is a parent, who hires Blake as a babysitter to watch Patricia’s young children for two days and one night over the weekend, from Saturday morning to Sunday night. Patricia walks out the door, hands Blake a credit card, and says: “Use this credit card to make sure the kids have fun this weekend.”

Next, the scenario continued in one of five ways:

[MISUSE] Blake only uses the credit card to rent a movie that only he watches; Blake does not use the card to buy anything for the children.

[MINOR] Blake does not use the credit card at all. Blake plays card games with the kids.

[REASONABLE] Blake uses the credit card to buy the children pizza and ice cream and to rent a movie to watch together.

[MAJOR] Blake uses the credit card to buy the children admission to an amusement park and a hotel; Blake takes the children to the park, where they spend two days on rollercoasters and one night in a hotel.

[EXTREME] Blake uses the credit card to hire a professional animal entertainer, who brings a live alligator to the house to entertain the children.

All scenarios concluded with:

The kids have fun over the weekend.

We anticipated that the five scenarios would be seen as varying in their “reasonableness” as a response to the rule “Use this credit card to make sure the kids have fun this weekend,” with the REASONABLE scenario as maximal and the others as less reasonable. As we describe below, this prediction was borne out.

In all of the questions, we randomly varied whether the scenario described the parent’s directive as an “instruction” or “rule.” This also had no effect on rule violation judgment. Below we present the questions using the term “instruction.” After reading the scenario, participants first answered a comprehension question:

Attention check question: According to the story, which of the following statements is correct?

[CORRECT] Patricia’s instruction was “Use this credit card to make sure the kids have fun this weekend.”

Patricia’s instruction was “Do not use this credit card to make sure the kids have fun this weekend.”

Patricia’s instruction was “Use this credit card for anything this weekend.”

Patricia’s instruction was “Do not use this credit card for anything this weekend.”

Next, participants answered the rule violation question:

[Rule Violation] In your personal opinion, which better describes this situation?

Blake followed the instruction.

Blake violated the instruction.

We also measured participants’ judgment of the rule’s literal meaning and purpose.¹⁷² Finally, we measured participants’ evaluation of whether the babysitter’s action was a reasonable response to the instruction:

[Reasonableness] Think about how Blake responded to Patricia’s instruction. In your personal opinion, is this an unreasonable or reasonable way to respond to that instruction?

(completely unreasonable) 1 2 3 4 5 6 7 (completely reasonable)

2. Methodological Details

As for Study 1, all Study 2 materials, hypotheses, exclusion criteria, and primary analyses were preregistered at Open Science.¹⁷³ The study data is also available at the same site. A total of 500 participants were recruited from Prolific.co and compensated $1.00 ($12.00/hr) for a 5-minute task. To be eligible, participants must have completed at least 10 tasks on Prolific, with a 100% approval rating, they must currently reside in the United States, and they must not have taken Study 1. Within the study, there were the same two check questions used as exclusion criteria in Study 1 (attention check and transitivity) and the new comprehension check described in the previous Section. Twenty-four (out of 499; i.e., 4.8%) participants were excluded with this criteria.

3. Results

A total of 475 participants were included in the data analysis (mean age = 37.74; 48% men, 50% women, 2% non-binary).

First, we examined whether the five acts differed in their perceived reasonableness with respect to the rule. A linear regression revealed significant effects of the Action (misuse, minor, reasonable, major, extreme). Compared to ratings for the “reasonable” act (buying pizza and a movie for the kids), ratings for the misuse act (buying a movie for only the babysitter) were significantly lower, β = -1.67, 95% CI = [-1.89, -1.46], p < .001; ratings for the minor act (playing cards rather than purchasing anything) were significantly lower, β = -0.48, 95% CI = [-0.69, -0.27], p < .001; ratings for the major act (purchasing the amusement park trip) were significantly lower, β = -1.03, 95% CI = [-1.24, -0.82], p < .001; and ratings for the extreme act (purchasing the alligator entertainer) were significantly lower, β = -1.77, 95% CI = [-1.98, -1.56], p < .001.¹⁷⁴

Figure 3.

Figure 3: Reasonableness Ratings. Ordinary judgments of an action’s reasonableness in the babysitter hypothetical. Higher scores indicate greater reasonableness (1–7 scale).

Next, we examined which of the five acts participants understood as instances of following or disobeying the instruction. A binomial logistic regression revealed effects of Act type on rule violation. For the misuse case, rule following prob. = 0.15, 95% CI = [0.09, 0.24]; for the minor case, rule following prob. = 0.51, 95% CI = [0.41, 0.61];¹⁷⁵ for the reasonable case, rule following prob. = 1.00, 95% CI = [0.00, 1.00];¹⁷⁶ for the major case, rule following prob. = 0.92, 95% CI = [0.84, 0.96];¹⁷⁷ and for the extreme case, rule following prob. = 0.90, 95% CI = [0.82, 0.94].¹⁷⁸

Table 1.
Case	Was the rule violated?	Was the action reasonable (7) or unreasonable (1)?
Reasonable	0%	6.84 (Most reasonable)
Minor	49%	5.83 (Highly reasonable)
Major	8%	4.68 (Reasonable)
Misuse	89%	3.32 (Unreasonable)
Extreme	10%	3.12 (Unreasonable)
Note: Table 1 represents the proportion of participants judging that the action violated the rule and the estimated marginal mean ratings of the action’s reasonableness. Some actions that were not the most reasonable (for example, major, extreme) were seen as largely consistent with the rule; others that were seen as fairly reasonable (for example, minor) were also seen as inconsistent with the rule

4. Discussion

This Study aimed to test the empirical claims underlying the “babysitter hypothetical,” an example that has been used to support claims in a linguistic defense of the MQD.

i. Do People Understand Different Actions to Vary in Their Reasonableness as a Response to the Rule “Use This Credit Card to Make Sure the Kids Have Fun This Weekend”?

Yes. People evaluated some actions as highly reasonable, such as buying pizza and a movie for the kids. Other actions appeared less reasonable, like taking the kids to an amusement park or simply playing cards (and not buying anything). Others were even less reasonable, such as hiring an alligator entertainer or using the card to only purchase something for the babysitter. These results are unsurprising, but this variation is essential to test the key claim that the babysitter hypothetical has been offered to demonstrate.

ii. Do People Understand Authorizing Rules to Be Limited to Only the Set of Most Reasonable Actions?

No. Although people evaluate Justice Barrett’s “major” action (taking the kids to an amusement park) as less reasonable than at least one alternative, they nevertheless understand it as consistent with the rule. Moreover, people evaluated the even more extreme example of bringing a live alligator to the house as consistent with the rule.

To be sure, people did rule out some actions as impermissible. In particular, the respondents overwhelmingly said that misuse of the credit card for the babysitter’s benefit rather than that of the children violated the rule. They also divided roughly evenly over the babysitter’s decision to forgo using the credit card at all. We will have more to say about these interesting patterns in Part IV,¹⁷⁹ but for now, the most important thing to note is that two of the less reasonable actions that tested the boundaries of the instruction were nevertheless deemed to be within the parent’s rule.

iii. Why Do People’s Judgments About an Act’s Reasonableness and Rule Violation Differ?

Our survey also included questions about the rule’s literal meaning and the rule’s purposes. First consider reasonableness judgments by considering the results for purpose and literal meaning. Figure 4 presents the results for the purpose question. On inspection, this pattern of purpose attributions across actions is similar to the pattern of reasonableness ratings (Figure 3): actions seen as more reasonable were also the ones seen as most supportive of the rule’s purposes. The ratings for purpose and reasonableness, r = 0.63, 95% CI = [0.57, .0.68], p < .001, were more highly correlated than the ratings for purpose and literal meaning, r = 0.39, 95% CI = [0.31, .0.47], p < .001.

Next consider judgments about rule violation. Both literal meaning and purpose were correlated with rule violation judgment, but rule violation was more strongly correlated with literal meaning, r = 0.67, 95% CI = [0.62, .0.72], p < .001, than purpose, r = 0.49, 95% CI = [0.42, .0.56], p < .001.

Figure 4.

Figure 4: Purpose Ratings. Ordinary judgments of whether an action supports (rather than opposes) the rule’s purposes in the babysitter hypothetical.

These analyses are exploratory and further work is required to more fully understand the differences in participants’ judgments about whether an action is reasonable and whether it violates a rule, but the Study here clearly shows a difference in these judgments.¹⁸⁰ The question of whether the rule was violated and the question of whether the action was a reasonable response to the rule are understood differently by ordinary people: These questions are not synonymous. The comparisons to the purpose measure suggest a stronger relationship between reasonableness and purpose than rule violation and purpose.

Textualists concerned with the ordinary meaning of rules would presumably favor the rule violation question over the reasonableness question. Textualists who place significant weight on whether an action was “reasonable” with respect to a rule may be incorporating purposive reasoning, which is not as clearly relevant to ordinary people’s straightforward understanding about whether an act violates a rule.

The results reported here about laypeople’s rule violation judgments are consistent with prior work. Previous studies have found that both text (operationalized as literal meaning) and purpose influence rule violation judgment, but the former has a stronger influence.¹⁸¹ In sum, ordinary people lean towards textualism, but not the “common sense” limitations claim at the heart of the linguistic MQD.

C. Objections

This Section considers the two primary objections that have been raised in print about the results since we first circulated a draft of this Article.

1. Objection 1: Subjects Must Be Sensitive to Stakes

One objection concerns stakes sensitivity. Wurman writes, “In conversation, Ryan Doerfler has pointed out that it does not appear that the participants [in this Article’s Study 1] were asked whether the rule was clear to Bob, as opposed to themselves, and Bob is the one sensitive to stakes in the example.”¹⁸²

It is not clear why this observation constitutes an objection. One version of this objection is that only the judgments of those directly impacted by the stakes are relevant to legal theory, and because our study’s participants are not themselves impacted by the bank’s closure, their judgments about knowledge and clarity are not useful. This objection proves too much. The legal literature theorizing the effects of stakes-on-knowledge and stakes-on-clarity draws heavily on philosophical thought experiments (especially the bank case about Bob). None of these examples involve high stakes for the thought experimenter. The stakes are always for the subject described in the scenario, like Bob. The assumption is that those considering the scenarios can evaluate the significance of stakes (for some other person). If this objection undercuts our experiments, it also undercuts the merit of the original philosophical thought experiments offered to support Wurman’s argument.

A different way to elaborate this observation into an objection is to propose that (1) there is a more subjective relationship between stakes and clarity and (2) that (subjective sense) of clarity is relevant to legal interpretation. For a particular judge, that judge’s determination of clarity depends on the practical stakes to that particular judge. We do not have the space to fully engage with the merits of this theory, but some of its consequences are unusual. Because the subjective practical stakes of a decision may vary between judges, on this subjective view of stakes and clarity, such differences in subjective stakes would appropriately correspond to differing evaluations of clarity. A judge experiencing high practical stakes could deem a text unclear, while a judge experiencing lower practical stakes could deem the same text clear. However, many would think that whether a legal text is clear or unclear (in the sense relevant to legal interpretation) should not vary among judges in this way.¹⁸³ On this highly subjective view, to predict whether a law is correctly identified as “clear” (in the eyes of a particular judge), one must know what practical stakes the (particular) judge faces.

Although we find this an unusual view about what clarity means in current legal interpretation, this objection’s underlying claim is an empirically testable one. As such, we investigate this empirical question as a robustness check: Do stakes affect people’s judgment about whether the rule is clear to Bob?

2. Objection 2: Only Parents’ Views About the Babysitter Hypothetical Count

A recurring objection to our study about the babysitter hypothetical concerns the population surveyed. Both Josh Blackman and Ilan Wurman have suggested that the appropriate audience for Justice Barrett’s hypothetical is parents.¹⁸⁴ Because Justice Barrett’s hypothetical involves a parent, the objection goes, we should look to (only) the views of parents in understanding the meaning of the parent’s instruction.

Our original study did not collect data about participant’s parental status because we see it as irrelevant to the legal theory debate about the ordinary meaning of the parent’s instruction to the babysitter—more on that below. However even if we had that data in the first study, it is extremely unlikely that filtering by parental status would result in a different bottom line result given that the overall results lean so strongly in one direction.¹⁸⁵ Only 8% of participants shared the intuition that the babysitter violated the parent’s instruction, and of the other 92% of participants, it is unlikely that that the vast majority (say 90%) did not have children. In the next Section, we present a new study that collects this additional demographic data. The results do not vary depending on parental or babysitter-hiring status.

Our more fundamental responses to this objection are theoretical and appeal to longstanding principles of interpretation. First, consider the question of audience: Should the babysitter hypothetical be limited to parents? That is, should textualist interpretation’s “ordinary reader” be limited to only a small subset of ordinary readers?

First, the objection assumes the wrong interpretive perspective. In Justice Barrett’s hypothetical, the parent is the lawgiver and the babysitter is the audience. But the correct textualist focus, according to Justice Barrett, is on interpretation from the “outside[],” not from the “inside[].”¹⁸⁶ Textualists typically view interpretation from the perspective of a “hypothetical reasonable person,” not from the perspective of the lawgiver. Fidelity to the text of the statute, as understood by an ordinary reader, is the best way to remain a faithful agent of Congress (or, as Justice Barrett would have it, as a faithful agent of the people). Thus, even if one specific focus in the babysitter hypothetical were deemed more appropriate, for modern textualists that focus would more likely be that of a babysitter (the instruction’s reader), not a parent (the instruction’s author).¹⁸⁷

Second, textualists do not subdivide the general class of ordinary people that determines ordinary meaning. Instead, the “Supreme Court tends to employ a one-size-fits-all approach to interpretation.”¹⁸⁸ We recognize the importance of interpretive communities and the observation that statutes have audiences.¹⁸⁹ However, the concept of audience is most often used in textualist theory and otherwise to support the use of technical meanings (instead of ordinary meanings) for certain specialized statutes. Otherwise, the same statute might mean different things to the different groups subject to it, a position that Justice Scalia (writing for the Court) condemned.¹⁹⁰ The proposal to find ordinary meaning only in the views of the people most directly implicated by the law is thus a radical departure from modern textualism.

This suggestion (the legal interpretive equivalent of “ask only parents”) also strikes us as unworkable. If an interpreter aimed to limit “ordinary meaning” to the meaning a statute has to the people most directly impacted by it, how do we identify the people in this community? Even in Justice Barrett’s more straightforward babysitter hypothetical (and again setting aside that the babysitter is the audience, not the parent), we could ask: Are the relevant readers all parents, parents who go away for weekends, parents who can also afford babysitters, parents who would be willing to hand a credit card to a babysitter, or parents who would be willing to hand a credit card to a babysitter with limited instructions?

Even if the relevant subcommunity could be identified, it is not clear a judge would be well positioned to identify this narrow subcommunity’s understanding. If the textualist interpretive inquiry shifted from one about ordinary meaning to one about “ordinary meaning for only the audience most directly impacted by this statute,” might judicial intuition be especially unreliable if judges were not part of this latter subcommunity?

This suggestion becomes more bizarre as we shift from the babysitter hypothetical to real legal examples. In Biden v. Nebraska, who is the relevant interpretive community of people: the Department of Education, people with student loans, or some other group? If we take this objection and analogy seriously, it seems we should ask who is the “parent” in Biden v. Nebraska? Presumably, it is Congress. Do Blackman and Wurman suggest that Congress’s views are most relevant in interpretation? If so, this objection offered by Justice Barrett’s defenders, emphasizing a narrow subgroup of people who give or implement this instruction, is inconsistent with Justice Barrett’s broader approach to interpretation, which emphasizes judges as faithful agents of the “people,” not Congress.¹⁹¹

In sum, the objection to “ask parents” about the babysitter hypothetical is not persuasive. Theoretically, the legal-interpretive analogue to “ask parents” is unmotivated, unworkable, and inconsistent with modern textualism. Nevertheless, we address this objection in the next part of this Section, in a replication study that asks for the participants’ parental status. Empirically, the results are no different for participants who are parents or who have hired a babysitter.

3. An Additional Empirical Study

We are not persuaded by the theory underlying these two objections, but we are grateful to those who have raised them. And, setting the theoretical issues aside, it is possible to test these objections empirically. To do so, we conducted one final study.

Five hundred participants were recruited from Prolific to complete Study 1 and Study 2, with a few minor modifications aimed at addressing the objections described previously. A total of 445 participants passed the same attention checks described in Study 1 and Study 2 above and were included in the analysis (mean age = 37.9, 47% men, 51% women, 2% nonbinary). The final demographics section also asked about whether the participants had children (38% yes, 59% no, 2% prefer not to respond), had hired a babysitter (21% yes, 77% no, 2% prefer not to respond), and had worked as a babysitter (48% yes, 51% no, 1% prefer not to respond).

i. Testing Clarity to Bob (the Agent Sensitive to Stakes)

Participants first read the Study 1 materials concerning Bob and the bank. They were again randomly assigned to high or low stakes and one of the four rule types (Obviously Clear, Ambiguous 1, Ambiguous 2, Obviously Unclear). Participants answered the same questions about knowledge and strict knowledge, as well as a new question that Wurman recommends about clarity to Bob:

[Clarity to Bob] Now imagine that Bob’s wife uses her phone to search for the bank’s policy. She finds a website for the local bank branch. The website’s text states [rule text varying by scenario].

Consider Bob’s perspective on this scenario.

Is this rule’s meaning clear or unclear to Bob concerning whether the bank is open?

Clear: The bank is open on Saturday.

Clear: The bank is not open on Saturday.

Unclear

A multinomial logistic regression examined the effect of Stakes (low, high) and Rule Type (Clear, Ambiguous 1, Ambiguous 2, Unclear) on judgment of the bank rule’s clarity to Bob (clearly open, clearly closed, unclear). First, consider the effect of Stakes. Comparing clearly open and clearly closed responses, there was no effect of Stakes, z = 0.95, p = 0.341. Comparing clearly closed and unclear responses, there was no effect of Stakes, z = 1.26, p = 0.209. There was no significant effect of Rule Type and no significant Stakes * Rule Type interactions.

The results for these questions about whether the rule is clear to Bob also show no effect of stakes. For the Obviously Clear rule, stakes did not affect judgments of clarity to Bob (2% of participants selected unclear in high stakes; 2% in low stakes); for the Ambiguous 1 rule, stakes did not affect judgments of clarity to Bob (29% of participants selected unclear in high stakes; 38% in low stakes); for the Ambiguous 2 rule, stakes did not affect judgments of clarity to Bob (4% of participants selected unclear in high stakes; 12% in low stakes); and for the Obviously Unclear rule, stakes did not affect judgments of clarity to Bob (61% of participants selected unclear in high stakes; 59% in low stakes).

The results for knowledge and strict knowledge were similar to the results found in Study 1. A binomial logistic regression revealed an effect of Stakes on knowledge. Participants attributed knowledge less in high-stakes cases (prob. = 0.85, 95% CI = [0.80, 0.89]) than in low-stakes cases (prob = 0.94, 95% CI = [0.89, 0.96]), odds ratio = 0.38, 95% CI = [0.19, 0.73], z = -2.89, p = 0.004. A binomial logistic regression revealed an effect of Stakes on strict knowledge. Participants attributed strict knowledge less in high-stakes cases (prob. = 0.64, 95% CI = [0.58, 0.70]) than in low-stakes cases (prob = 0.81, 95% CI = [0.75, 0.86]), odds ratio = 0.42, 95% CI = [0.27, 0.65], z = -3.91, p < 0.001.

In sum, one objection to our original Study 1 is that it fails to ask the right question about clarity: it should ask whether the text is clear to Bob, not clear in general. This follow-up study tested that question about clarity to Bob, finding identical results: participants’ judgments about clarity to Bob were not sensitive to high stakes.

ii. Parents Only

The second objection is that we should consider only the views of parents. Consider the results of the same study, replicated, broken out by whether participants are parents, and have hired a babysitter.¹⁹²

Table 2.
Case	Violation: All Participants	Violation: Parents Only	Violation: Hired Babysitter Only	Was the act reasonable (7) or unreasonable (1) (All Participants)
Reasonable	0%	0%	0%	6.87
Minor	30%	26%	33%	6.23
Major	8%	7%	10%	4.41
Misuse	81%	79%	84%	3.21
Extreme	21%	18%	25%	3.00
Note: Table 2 represents the proportion of participants judging that the action violated the rule and the estimated marginal mean ratings of the action’s reasonableness.

Comparing across all participants, parent participants, and those who have hired babysitters, the results are essentially identical. Participants generally disagreed that the babysitter violated the rule/instruction by taking the children to an amusement park overnight, and this did not depend on whether those participants were themselves parents or had hired a babysitter.

4. Additional Objections

We have responded to the two major objections leveled against the studies since we made a draft of this Article public. However, there are two other objections that strike us as worth pursuing, but which we do not have the space to fully explore here.

The first is that in our babysitter experiment, we should have asked a different question. As a reminder, we asked “which better describes this situation?”—that the babysitter “followed” the instruction/rule or “disobeyed” the instruction/rule? This strikes us as a straightforward way to capture textualists’ concern: What does the rule mean to the ordinary reader? Wurman suggests that we should have asked other questions, like whether participants agree that the instruction “include[s] authorization” to undertake this action, or whether participants think “ordinary, reasonable interpreters of this parent’s instruction would have interpreted it to include this scenario.”¹⁹³ Wurman does not motivate these suggestions with much theory, and it is not obvious why these phrasings would identify participants’ understanding of the meaning of the rule. For example, recall that there are many theories of interpretation: textualism, purposivism, and consequentialism. It is not obvious that most people think the “reasonable interpreter” is a textualist. Perhaps people think that the “ordinary reasonable interpreter” is not a pragmatist. If so, asking people about their views of “the reasonable interpreter” would reliably generate non-textualist judgments.

Nevertheless, in our third study, we also asked these two additional questions: (1) “In your personal opinion, which better describes this situation?”—(a) The parent’s instruction/rule “authorized” the babysitter “to undertake this action”; or (b) The parent’s instruction/rule “did not authorize” the babysitter “to undertake this action”; and (2) “In your personal opinion, which better describes this situation?”—(a) “An ordinary person interpreting” the parent’s instruction/rule “would understand it to allow what” the babysitter did; or (b) “An ordinary person interpreting” the parent’s instruction/rule “would not understand it to allow what” the babysitter did. The results did not differ in the dramatic way that Wurman predicts. For the first authorization question, 85% of participants agreed that the “major” action was authorized. For the second “reasonable interpreter” question, a majority (57%) agreed that this reasonable interpreter would give the textualist response to the major action case: the reader would understand the instruction/rule to allow what the babysitter did.

A final objection states that the parent-babysitter analogy is a poor analogy for the Congress-agency relationship. This objection is sometimes offered as a critique of the MQD, not a defense, and as a reason why we should not indulge a faulty analogy. Less frequently, it is raised as a defense to the MQD—suggesting that the context of a real-world delegation would surely include consideration of constitutional structure.¹⁹⁴ We are exploring the idea that the babysitter hypothetical misses important relevant context to the evaluation of delegations in a future piece, but for now we set it aside. This Article takes the babysitter hypothetical from Biden v. Nebraska on its own terms. For readers that are skeptical that such an analogy provides insight into the meaning of statutory language, our study offers a second line of critique: the analogy does not offer insight into statutory meaning, and even if it did, its assumption about ordinary readers is faulty.

IV. IMPLICATIONS

The recent pivot to a linguistic defense of the MQD is a watershed moment for two fields of law that often intersect: statutory interpretation and administrative law. Through the narrowest lens, the reframing of the MQD as “linguistic” attempts to insulate the nascent MQD from scrutiny as hypocritical anti-textualism, allowing conservative judges to use the doctrine to curb the power of the administrative state without turning in their textualist cards.¹⁹⁵ But the move also resonates much more deeply. If accepted, the connection being drawn between ordinary people and the MQD would move textualism further towards an “outsider” orientation, with implications well beyond the narrow purview of the MQD.¹⁹⁶ Likewise, if accepted, the linguistic defense of the MQD would tend to reinforce trends toward an explicitly “libertarian administrative law,”¹⁹⁷ backing it with the force of supposedly ordinary people’s commonsense understanding of how government should work.

The theoretical critiques and original empirical evidence presented thus far in this Article support skepticism about the arguments to adopt the MQD as linguistic. In this Part, we explain why, and we also reflect on what our evidence says more generally about the fields of statutory interpretation and administrative law.

We start in Section IV.A by discussing how our investigation and findings challenge the conclusion that the MQD is a valid linguistic canon. In light of existing empirical work, our new empirical studies, and our new theoretical analysis and objections, we conclude that the two “linguistic defenses” of the MQD do not have adequate empirical support or theoretical clarity to succeed. Of course, defenders of the MQD might propose new arguments or different evidence, but for now, it is difficult to see on what basis one could employ the MQD as a valid linguistic canon.

Section IV.B explains that Justice Barrett and Wurman’s attempts to establish the MQD as a linguistic canon raise serious challenges to textualism. Justice Barrett’s arguments about “common sense” and “context” are so general that they threaten to undermine textualism’s commitment to enforcing the rule of law by privileging semantic content, even when unexpected applications are at issue. In turn, Wurman’s defense of the MQD necessarily involves a broad conception of “ambiguity.” This broad framing of ambiguity has been criticized by Justices Scalia and Kavanaugh and, like Justice Barrett’s arguments, would result in courts using “ambiguity” as a pretext to avoid the semantic meanings of statutes.

Finally, Section IV.C addresses broader implications for administrative law and regulation. We have reservations about any strategy to ground judicial interpretation in “ordinary people’s” understanding of ordinary examples, especially for a topic as technical as administrative law. Nevertheless, for the sake of argument, we consider where such an “ordinary” approach should take textualist interpreters. Empirical evidence about ordinary understanding of law and language suggests a dramatically different approach than what Justice Barrett suggests for the MQD. Ordinary people understand broad delegations to include a wide range of reasonable actions consistent with the delegation. Moreover, our findings reveal something we did not expect: ordinary people are fairly skeptical that underimplementation of delegated authority is consistent with facially broad delegations. These facts do not support the MQD, but they might support other linguistic canons—many of which have more in common with Chevron than the MQD—and they may counsel some rethinking of administrative law’s indifference to agency inaction.

A. The Major Questions Doctrine Is Not a Valid Linguistic Canon

The most immediate question motivating our studies is whether there is a valid basis for considering the MQD as a linguistic canon of statutory interpretation. As discussed above, canons are traditionally distinguished according to whether they are justified by normative or legal principles (in which case they are substantive) or whether they help determine the linguistic meaning of statutory language (in which case they are linguistic).¹⁹⁸ Although a canon can be both substantive and linguistic,¹⁹⁹ the MQD’s defenders have emphasized the MQD’s supposed linguistic properties because of growing concerns among textualists about both substantive canons generally and the MQD in particular. The existing empirical evidence reviewed in Part II and original empirical studies in Part III suggest this is a false start: the linguistic properties identified by the MQD’s defenders do not find support in the intuitions (or “common sense”) of ordinary people. Consequently, at least in the absence of further empirical studies, the MQD cannot, and should not, be defended as a valid linguistic canon capturing how ordinary readers understand delegating statutes.

1. The Evidence Does Not Support a “High-Stakes” Linguistic Major Questions Doctrine

i. High Stakes and Knowledge

Start with the theory that the MQD is justified on the grounds that, for ordinary people, the stakes of an interpretive dispute impact the text’s clarity.²⁰⁰ This argument begins by appealing to analytic philosophy and legal theory that posits a relationship between stakes and knowledge claims.²⁰¹ The central example is the bank case: when little depends on the bank being open on Saturday, we know that it is open; but, when the stakes of the Saturday deposit are higher, we do not know that it is open.

However, a large empirical literature reports this claim to be false,²⁰² and the entire philosophical literature to be “founded on a myth” about people’s reactions to these cases.²⁰³ Many studies find that high stakes have no effect at all on knowledge. Moreover, most of these studies use the exact case (the bank case) to which defenders of the linguistic MQD appeal.

The comparatively fewer studies that find an effect on knowledge report a small effect. In those studies, high stakes reduce knowledge for around 10% of participants, but not for the vast majority.²⁰⁴ This Article’s new large empirical study (N = 500) finds a similarly small effect on knowledge, only a 9% difference between the low- and high-stakes cases.²⁰⁵

Textualists are not always clear about how to construct their “ordinary reader,” but it is difficult to see how even this small difference (95% of people in low stakes agree there is knowledge, and 86% of people in high stakes agree there is knowledge) is sufficient to conclude that “the ordinary reader” has less knowledge in high-stakes contexts. For the vast majority of ordinary participants, high stakes have no impact on knowledge; the foundational premise in the “high-stakes” MQD seems to reflect an unordinary epistemology.

ii. High Stakes and Clarity

The “high-stakes” argument for the linguistic MQD uses this (false) premise about knowledge as a theoretical foundation to support a technically distinct, and to date untested, claim that ordinary people follow the same epistemological pattern when making judgements about the clarity of statutory language. Assuming that people do this, the argument concludes that a high-stakes situation can render otherwise clear statutory language unclear.

The recent “high-stakes” legal interpretation literature seems to assume that statutory interpretation essentially involves a kind of knowledge claim, such that high stakes’ impact on knowledge necessarily carries over into the interpretive context.²⁰⁶ Our data (the only we are aware of on this point) is not consistent with this transitive logic.²⁰⁷ We found that high stakes have a small effect on knowledge, but no effect at all on textual clarity. This finding supports the conclusion that ordinary judgments of knowledge do not rise and fall consistently with ordinary judgments of textual clarity.

More importantly, we find that high stakes have no effect on clarity for texts of varied levels of baseline ambiguity. High stakes did not reduce ordinary people’s sense of clarity for a fairly clear text or even for texts that were initially more ambiguous.²⁰⁸ This finding challenges the more critical premise in the “high-stakes” MQD defense (concerning clarity, not knowledge).

Together, these two problems count against the “high-stakes” linguistic defense of the MQD. High stakes have (at best) a small impact on knowledge and no impact on clarity. We have also noted various other theoretical issues with the “high-stakes” linguistic argument. For example, even if high stakes had the hypothesized effects, it is not clear why reduced knowledge or textual clarity puts more weight on judges’ readings of the statutes or implies anti-agency interpretation rather than putting more weight on agency interpretations of the statutes.²⁰⁹

2. The Evidence Does Not Support an “Anti-Literalist” Linguistic Major Questions Doctrine

i. The Data Do Not Support the Stronger Claim Necessary to the “Anti-Literal” Linguistic Major Questions Doctrine

The previously discussed considerations about anti-literalism²¹⁰ are insufficient to support a strong conclusion about the MQD. Just because people sometimes interpret non-literally and display context sensitivity does not imply that courts should interpret general delegating language to authorize only a small subset of agency actions that fall under the text’s meaning. One could easily agree that (1) delegations should not always be interpreted literally, while also holding that (2) anti-literalism does not lead to the MQD.

In Section III.B, we reconstructed Justice Barrett’s argument in sufficient detail to deliver the MQD conclusion. We understood her key empirical claim to be the following: absent additional context, ordinary people understand rules that grant authority to an agent to have significant contextual limitations against all “major” actions; such a rule’s communicative content is limited to authorizing only the set of most reasonable actions. Here, an action is “major” if readers understand it, absent additional context, as not among the set of most reasonable ways to follow the rule. While this is a much stronger premise than mere anti-literalism, an even stronger premise is necessary to conclude that in MQD cases, absent additional context, judges should interpret delegations to exclude all major actions.

Our empirical study tested this claim about ordinary understanding of grants of authority.²¹¹ Here, we again sought to minimize researcher degrees of freedom and chose cases that have been offered by advocates of the linguistic MQD. In Study 2, we examined Justice Barrett’s “babysitter case.” We found that most ordinary people do not take the babysitter’s actions, that is, taking children on a multi-day trip to an amusement park, to be unauthorized by the parent’s instruction to use the parent’s credit card to ensure that the kids have fun over the weekend. To the contrary, 92% of respondents took the babysitter’s actions to be consistent with the rule/instruction. When we looked at a more extreme hypothetical—bringing a zookeeper to the house to entertain the kids with a live alligator—respondents judged the babysitter’s actions less reasonable but virtually just as authorized by the parent’s instruction to “make sure the kids have fun.”

However, our respondents did not simply think anything followed the rule. Fully 85% of them thought that the babysitter’s decision to use the credit card for something other than the children’s entertainment violated the instruction, and 49% believed that it was a violation of the instruction to entertain the children too little.

Importantly, these different actions varied in their perceived reasonableness. Participants agreed that it is more reasonable to respond to the parent’s instruction by buying the kids pizza, and less reasonable to take the kids to an amusement park or hire an animal entertainer. Nevertheless, participants judged that these latter actions—while not part of the most reasonable set of responses—are fully consistent with the rule.

Ultimately, these findings suggest that even if Justice Barrett is right that context matters for interpreting grants of authority to administrative agencies, that fact alone does not justify the strong MQD. To point to “common sense” and “context” may be entirely reasonable for a judge—we will have more to say about this in the next Section—but referring to them does not rule out “major” or less reasonable agency actions, at least in the minds of ordinary readers.

3. Limits of the Evidence, and the Bottom Line

Our two studies test the central examples that have been offered by proponents of the MQD as a linguistic canon. Both of those arguments appeal centrally to claims about how ordinary readers understand language; neither of those claims is supported by the studies conducted here. Of course, this Article’s focus is on the linguistic arguments, not the many other defenses of the MQD.²¹² And concerning the linguistic case, we are open to future arguments and empirical studies: some future revision of a linguistic defense of the MQD could possibly succeed. In this Section, we briefly highlight some of the limits of our studies and the doors they leave open for proponents of the MQD. We also summarize our “bottom line” about the MQD.

i. Substantive Arguments for the Major Questions Doctrine

First, and perhaps most obviously, our studies do not foreclose a substantive basis for the MQD. That is, rather than grounding the doctrine in how text is understood, proponents of the MQD might point to constitutional or normative values that should lead judges to depart from the best reading of statutory language when agencies take major actions. The fact that none of the other Supreme Court justices joined Justice Barrett’s concurrence might suggest that at least five justices are comfortable with the idea that the MQD is solely substantive rather than partly or entirely linguistic.

So far, the Court has not clearly articulated the substantive basis of this canon: for Justice Gorsuch, the source of normative substance appears to be the nondelegation doctrine; for Chief Justice Roberts, the source is general separation of powers principles. But this lack of clarity about from where the justices are drawing the MQD’s substantive content does not mean that the MQD might eventually come, through an incremental process, to coalesce around some common narrative that would suffice to justify the MQD as a substantive canon alongside the many other substantive canons that our legal system recognizes. Given the growing textualist skepticism of substantive canons, as well as the contestable premises of the nondelegation doctrine and separation of powers, we doubt that such a defense would be uncontroversial,²¹³ but this is a topic that falls outside the scope of this Article.

ii. Linguistic but Non-Ordinary Arguments for the Major Questions Doctrine

Second, our studies focus on linguistic defenses that tie themselves explicitly to appeals to the construct of the “ordinary reader.” While we think this focus is defensible, given the larger textualist commitment to the ordinary reader as the anchor for interpretation,²¹⁴ it is also possible to defend a linguistic MQD on the grounds that it represents some kind of generalization about how Congress likely intends delegating statutes to be interpreted. The move here is to ground the MQD in what Beau Baumann calls the “descriptive case”: that is, an empirical assertion about the ordinary context of delegating statutes and the way Congress operates when it passes delegating statutes.²¹⁵

Indeed, the Court in West Virginia v. EPA said as much when it cited a “practical understanding of legislative intent” as a basis for the MQD;²¹⁶ both Wurman and Justice Barrett nod to this possibility as well.²¹⁷ On Wurman’s account, it makes sense as a linguistic matter to bake this contextual evidence of how Congress treats important questions into our reading of delegating statutes—that is, to interpret ambiguous statutes as not intended to delegate important matters. Justice Barrett’s concurrence in Biden v. Nebraska makes a similar move. After noting that all interpreters seek to “situate[] text in context,” Justice Barrett posits that “[b]ackground legal conventions . . . are part of the statute’s context.”²¹⁸ In a principal-agent relationship, “ ‘the context in which the principal and agent interact,’ including their ‘prior dealings,’ industry ‘customs and usages,’ and the ‘nature of the principal’s business or the principal’s personal situation’ ” help form the background legal conventions that govern delegation.²¹⁹ From there, Justice Barrett argues that we know from the context of how Congress usually delegates to agencies that Congress is “more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute’s daily administration.”²²⁰

These kinds of arguments based on the “descriptive case” run into persistent empirical problems—namely, there is ample evidence that Congress often does intend to delegate major questions to agencies through vague language, and only weak and contested evidence that Congress does not so intend.²²¹ These kinds of arguments are also in significant tension with textualism, which generally eschews evidence of legislative intent except insofar as it is “objectified” in statutory language. However, given the evidence presented in this Article, these arguments may still be more promising for proponents of the MQD than a linguistic defense premised on ordinary meaning.

On the whole, then, it does not seem like the doors that are left open by our study are ones that would be attractive to the textualist justices who have given us the MQD. But we cannot deny another possibility: that textualism itself may evolve (or dissolve?) in ways that accommodate the MQD on these other grounds. We turn to that topic in the next Section, but before doing that, we would reiterate that the ordinary-meaning defense of the MQD is, by all appearances, a total dead end. Textualists would be hard-pressed to continue to defend the MQD on this theory of the case and this record of decision.

iii. The Bottom Line

This Section has briefly noted some limitations of the Article. We make no claims about other (non-linguistic) defenses of the MQD. And we are, of course, open to the possibility that some future argument or evidence could rehabilitate the linguistic defense of the MQD.

However, it is important to emphasize that we endorse a firm conclusion about the current state of affairs for the linguistic MQD and textualists’ use of the canon. The two extant linguistic defenses of the MQD depend on empirical claims about specific hypotheticals (for example, the bank case) that are not supported by empirical studies of ordinary Americans. Proponents of the linguistic MQD may offer new, more workable arguments, with different thought experiments, or different empirical support. But until then, there is no basis to employ it as a linguistic canon, and there is now significant evidence counting against core claims of the two publicly stated linguistic arguments.

Second, even for textualist judges with no interest in the linguistic defense, the empirical data about ordinary readers counts against the MQD’s consistency with ordinary language. Given ordinary readers’ understanding of language, there is more evidence in favor of treating the MQD as an anti-linguistic canon than a linguistic canon.²²² And as Justice Kagan remarked, judges who appeal to such non-principles over linguistic interpretation are not really textualists.²²³

B. Broader Implications for Modern Textualism

Justice Barrett and Wurman’s arguments have implications for textualism beyond the narrow (but hugely important) issue of whether the MQD is a linguistic canon. Textualism’s claim to distinctiveness centers on a commitment to interpretation according to a text’s linguistic meaning, thereby promoting rule of law values.²²⁴ Textualism thus abjures judicial discretion to depart from that linguistic meaning.²²⁵ As Justice Scalia emphasized, judges should not exercise an unbounded “personal discretion to do justice.”²²⁶ Instead, judges should be restrained even when some results may have been unanticipated by the legislature.²²⁷

Justice Barrett’s expansive view of “context,” “common sense,” and non-literal interpretation expands, but also challenges, these foundations of textualism. Justice Barrett admirably argues for a sophisticated version of textualism that rejects literalism and recognizes implied terms.²²⁸ Even so, existing interpretive canons that recognize implied terms are narrow, and thus do not undermine textualism’s commitment to linguistic meaning.²²⁹ In contrast, Justice Barrett’s “common sense” interpretive canon is unbounded, granting judges considerable discretion to claim that a wide range of actions fall outside of the text’s meaning (or “reasonable meaning”).

Wurman’s arguments also have implications that threaten to expand, if not unravel, textualism. Recall that Wurman, unlike Justice Barrett, frames the MQD as a tiebreaker canon that resolves statutory ambiguity.²³⁰ Wurman is correct that the Court has referenced “ambiguity” in MQD cases. This framing of the MQD, however, requires a broad view of ambiguity that would make its determination even more discretionary, and likely more pretextual.

1. Justice Barrett’s Theory of Non-Literal Interpretation

Justice Barrett’s general appeals to context and non-literal interpretation are consistent with modern textualist scholarship and thinking. Justice Kavanaugh has also repeatedly emphasized the distinction between literal and ordinary meaning and has insisted that courts should avoid overly literalist meanings.²³¹ Similarly, John Manning argues that “the literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language.”²³²

Textualism, though, purports to privilege semantic meaning, thereby giving a relatively limited role to non-literal meanings informed by context and pragmatics. Thus, while Manning endorses some non-literal interpretation, his “background conventions” are narrow ones relevant to the “relevant linguistic community” subject to the law, such as common law criminal defenses.²³³ Besides these limited examples, according to Manning, judges “have a duty to enforce clearly worded statutes as written, even if there is reason to believe that the text may not perfectly capture the background aims or purposes that inspired their enactment.”²³⁴ Doing so ensures “Congress’s ability to use semantic meaning to express and record its agreed-upon outcomes.”²³⁵

A coherent textualism would thus recognize a narrow role for implied terms. Crucially, an implied term must be one that would be obvious to the discourse participants, rather than one imposed by the interpreter for other reasons. An implied term must therefore reflect a presupposition about meaning that is warranted in the circumstances.²³⁶

Statutes are often drafted at a high level of generality, and Justice Barrett is correct that readers of those rules understand that sometimes the rules expressed are not meant to be taken literally in all respects. Crucially though, the relevant existing interpretive canons are implicated in narrow circumstances and provide relatively specific rules for limiting literal meaning.²³⁷ Furthermore, empirical evidence supports these narrow rules as linguistic and thus consistent with how ordinary people interpret legal texts.²³⁸

Justice Barrett’s view of implied terms as governed by “common sense” and “context” is similar to Richard Fallon’s approach. Fallon argues that “[o]rdinary principles of conversational interpretation call for us to ascribe a reasonable meaning to prescriptions and other utterances unless something about the context indicates otherwise.”²³⁹ Fallon reasons that “[i]n ordinary conversation, we do not waste time and breath offering elaborations and qualifications of our utterances that ought to be obvious to any reasonable person.”²⁴⁰ Instead, a “reasonable person” understands that “[t]he moral reasonableness of a particular ascribed meaning possesses a distinctive importance.”²⁴¹ Both Fallon and Justice Barrett draw on principles of conversational communication and context, and while Fallon references “reasonable meaning” and Justice Barrett “common sense,” the two are essentially the same idea. In fact, Justice Barrett uses the word “reasonable” in relation to interpretation eleven times in her Biden v. Nebraska opinion (e.g., “reasonable understanding,” “reasonable view,” “reasonable interpreter”).²⁴² Furthermore, her appeal to “common sense” and “reasonable” interpretations has, like Fallon’s view, room for moral and normative beliefs to motivate non-literal interpretations.

The similarities between the interpretive approaches of Justice Barrett and Fallon should be surprising and troubling to textualists. Fallon’s interpretive principle is in furtherance of his decidedly anti-textualist view of interpretation.²⁴³ Justice Barrett’s principle of “common sense,” guided by “context,” is supposedly in furtherance of textualism, but it raises questions that do not have easy textualist answers. Can the principle always defeat the literal meaning of a statute? How can “common sense” even be defined? Even if “common sense” could be defined, do judges share the same “common sense” as ordinary people, or do judges speak with what Eskridge and Nourse refer to as an “upper-class accent?”²⁴⁴ The ability for judges to appeal, with little restraint, to “common sense” and “context,” calls to mind Scalia’s fears about non-textualist judging: “personal discretion to do justice” as the judges saw fit.²⁴⁵

2. The Anti-Textualist Broad View of Ambiguity

An additional threat to textualism is posed by a broad view of “ambiguity.” Recall that Wurman argues that the MQD is a linguistic canon that resolves statutory ambiguity.²⁴⁶ In support of this claim, Wurman quotes from MQD decisions where the Court argues that the relevant statutes are “ambiguous.”²⁴⁷ This defense of the MQD is unsurprising. Textualism is much more permissive about available arguments and interpretive sources when a provision has been deemed “ambiguous.”

There are two key drawbacks in viewing the MQD as serving a tiebreaking role in resolving ambiguity. First, doing so understates the MQD’s role in the Court’s precedents. The MQD has not merely resolved “ties” between meanings; it has caused the Court to choose meanings it would not otherwise have selected. Second, Wurman’s view requires a definition of ambiguity that should be especially troubling to textualists, and the significance of the issue extends beyond the MQD.

Wurman’s argument raises an essential question: On what basis can a provision be deemed “ambiguous”? Wurman suggests that a provision can be “ambiguous” even when a court can determine the provision’s “best reading.”²⁴⁸ Thus, crucially, the question of ambiguity does not require that a provision be indeterminate. In other words, the semantic meaning of the provision’s terms could be clear (even if broad) but still “ambiguous,” based on non-textual considerations like the novelty and importance of an agency’s actions.

Use of the “ambiguity” label often obscures rather than clarifies linguistic issues. Specifically, it glosses over the distinctive linguistic features of the prototypical statute involved in MQD cases, which is a statute with broad but semantically clear terms. These features—broad but semantically clear—should represent for textualists a prima facie case against the MQD. After all, textualists assert that courts should focus on the semantic meaning of statutes.

Outside of MQD cases, some textualists have recognized the potential dangers associated with a judicial focus on “ambiguity.” Most significantly, Justice Kavanaugh has criticized “ambiguity” as an interpretive doctrine because its identification is standardless and subjective.²⁴⁹ Its discretionary identification and legitimizing power, however, make “ambiguity” an especially attractive interpretive tool for judges. “Ambiguity” is extremely useful because it gives a court cover to interpret a statute narrowly or broadly on the basis of normative concerns. For instance, an explicit announcement of ambiguity allowed the Court in King v. Burwell to “avoid the type of calamitous result that Congress plainly meant to avoid” and gave it justification for “interpret[ing] the Act in a way that” improves health insurance markets and does not destroy them.²⁵⁰

“Ambiguity’s” legitimizing power explains why the Court in MQD (and other) cases is motivated to label a provision as “ambiguous” without much consideration about whether it is applying a coherent definition of ambiguity. It may be activist to interpret a clear statute narrowly because doing so would be in tension with the provision’s linguistic meaning. In contrast, resolving statutory “ambiguity” is necessary to decide the interpretive dispute, and choosing the narrower interpretation does not conflict with the provision’s linguistic meaning. Thus, if a provision is problematically broad, labeling it as “ambiguous” does not require the Court to explicitly reject its literal meaning.

If a provision can be “ambiguous” even when a court can nevertheless determine its “best reading,” “ambiguity” would mean something like “any uncertainty about the meaning of a provision.” But this sort of definition would make ambiguity ubiquitous and is inconsistent with how it is used in Chevron and other tiebreaker canons like the rule of lenity.²⁵¹ If instead “ambiguity” means that a provision must actually be indeterminate, there is no “best reading” of a provision, but merely possible competing meanings.

The question of ambiguity thus hinges on whether “ambiguity” is synonymous with “indeterminacy.” Even if the terms are synonymous, framing the MQD in terms of “ambiguity” should be unappealing to textualists. The MQD would still be a matter of judgment that depends on how one weighs semantic and pragmatic evidence. In other words, a combination of meaning and context makes a provision clear or, conversely, ambiguous. Univocal semantics and univocal pragmatics may uncontroversially result in a clear provision, and multivocal semantics and multivocal pragmatics in an ambiguous provision, but other combinations are contestable and subject to normative resolution via highly discretionary judgments.

The choice is thus between a narrow definition of “ambiguity” that would require the semantic meaning of the statutory text be indeterminate in some way, and a broad definition that would allow even semantically clear language to be deemed “ambiguous” based on non-language concerns like statutory purpose. Justice Scalia argued that the broad view of ambiguity is “judge-empowering” and mocked the idea that “[w]hatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous!”²⁵² A broad definition of ambiguity would allow the label to be used at any time by emphasizing any number of pragmatic considerations, such as the problematically broad semantic meaning of terms or the “novelty” of an agency’s interpretation. If instead, as Justice Scalia argues, pragmatic evidence can only clarify semantically indeterminate text, ambiguity would therefore require indeterminate semantic meaning and be a narrower, less discretionary doctrine.²⁵³

Textualists in MQD cases should be honest about their use of “ambiguity.” If they use the term broadly, they should explain why Justice Scalia’s critique of the broad definition is mistaken. If they instead agree with Justice Scalia, the MQD cases involving clear (but broad) semantic meaning should thus be viewed by textualists as similar to situations not involving ambiguity. In such cases, if the Court wishes to narrow the literal meaning of the language, it should state so explicitly, giving reasons for why such narrowing is consistent with the judicial function.

C. Broader Implications for Administrative Law

This Article has taken textualists’ defenses of the MQD at face value. But some harbor a more realist or critical take on the MQD. Perhaps the MQD is animated by neither constitutional values nor language, but rather by the aim of limiting the administrative state’s power. And perhaps leaving questions about the MQD’s legitimacy unresolved allows strategic ambiguity, which is better for this purpose.²⁵⁴ Some go even further to argue that the justices are engaged in a form of constitutional hardball, seeking to aggrandize themselves vis-à-vis the other branches of government.²⁵⁵ It is certainly difficult to overlook the hostility that many of the justices express toward modern administrative government and the legislative acts that authorized it.²⁵⁶

Yet, turning our attention away from the Supreme Court and toward the broader legal community, our findings about how ordinary people understand delegations of authority have significant implications for administrative law well beyond the MQD. While we acknowledge that there are good reasons to be skeptical about outsourcing questions of administrative law to laypeople, insofar as textualist principles animate the statutory interpretation questions at the heart of administrative law, it is worth asking where ordinary people’s intuitions lead.²⁵⁷ Below, we highlight a couple takeaways from this exercise. An irony of textualist’s turn to “ordinary people” to support the MQD may be that it actually supports a significantly cabined judicial role in controlling delegation of authority to the administrative state. Far from endorsing a kind of “libertarian administrative law” that treats delegations of authority to administrative agencies with suspicion and seeks almost perfunctorily to narrow them,²⁵⁸ ordinary people appear to take general ordinary delegations to license a range of reasonable actions.

To be sure, we considered ordinary judgments of an ordinary, private delegation (that is, the babysitter), but critics of the administrative state have made that ordinary context relevant by insisting that general principles of private agency and/or ordinary delegations law should inform public law delegation.²⁵⁹ We are also skeptical that there is an easy way to study the “ordinary person’s” view of specific cases. As prior research has shown, interpreters’ values affect their interpretation.²⁶⁰ Asking ordinary people whether the EPA has authority to issue broad climate change regulations under the Clean Air Act is likely to tell us more about people’s values and politics than their understanding of language. Thus, the implications we spell out depend on the validity of this ordinary analogy—the one made by the linguistic MQD’s defenders (recall the “high stakes” appeal to the ordinary bank case and the “common sense” appeal to the ordinary babysitter case).

To start, our study of the babysitter hypothetical revealed a surprising result about what ordinary people would think of the amusement park hypothetical. Taking the children to the amusement park might not be the most reasonable response to the instruction to “use this credit card to make sure the kids have fun this weekend,” but it certainly does not violate it (after all, an amusement park is “fun”). The study also revealed that the vast majority of ordinary people believe that the parent’s instruction extends to the even more unusual action of bringing a live alligator to the house. This surprising finding suggests that people do not limit delegations to only the most reasonable actions or the ones most consistent with the rule’s purpose.

Ordinary readers approached the limits of broad delegations through a textual and purposive lens. Compared with the amusement park, alligator, and movie scenarios, respondents were far more likely to say that the babysitter violated the instruction when the babysitter failed to achieve the purpose of the instruction (as in the case of not using the credit card and potentially shortchanging the children’s fun) and when the babysitter actively undermined it (by using the credit card for the babysitter’s own enjoyment). This finding is difficult to understand unless ordinary readers understand delegations in large part as remedial—that is, as seeking to empower the agent to solve a problem or achieve some goal—rather than exclusively delimiting—that is, as setting out the scope of the agent’s power.²⁶¹

The modern textualist commitment to ordinary people’s understanding as a basis for interpretation²⁶² and linguistic canons²⁶³ opens the door to uncovering a linguistic basis for other canons, including new canons.²⁶⁴ As a hypothetical, imagine if a textualist were to carefully consider evidence about ordinary people’s understanding of delegating language (e.g., in the babysitter case) and attempt to “canonize” those intuitions into administrative law doctrine. The result would probably be a fundamental recalibration of the field—but not in the way the MQD imagines. Were one to follow the evidence, it seems to instead support canonizing a sort of “counter-MQD” that presumes that general delegations should be interpreted broadly (or at least not as restrictively as Justice Barrett’s argument claims), significantly curtailing judicial power to limit Congress’s attempts to empower administrative agencies.

In addition, and relatedly, our findings are in some tension with administrative law’s traditional approach to questions of underimplementation of statutory delegations. A variety of administrative law doctrines insulate agency discretion to decline to enforce the law: for instance, Heckler v. Chaney provides that agency nonenforcement decisions are almost never reviewable by courts,²⁶⁵ and Norton v. Southern Utah Wilderness Alliance makes it impossible for challengers to force agency action unless they can point to a discrete duty (rather than a more general failure to pursue broad policy goals of a statute).²⁶⁶ These doctrines insulate agency underuse of delegated regulatory authority from judicial scrutiny. Yet our findings suggest that ordinary readers may be more troubled by delegated authority’s underuse than uses that fit with the language but exceed an observer’s sense of reasonableness.²⁶⁷ On the flip side, when agencies do take action pursuant to their delegations, judges often artificially narrow those delegations.²⁶⁸ Canons that might theoretically push in the opposite direction—toward liberally construing “remedial” statutes, for instance—have fallen into disrepute.²⁶⁹ This basic asymmetry in the treatment of delegations to agencies—deep skepticism of exercises of delegated authority coupled with indifference toward failures to exercise delegated authority at all²⁷⁰—may be exactly backwards if ordinary people’s intuitions are to be the guide.

Again, we do not endorse any particular changes to administrative law here. There are many good reasons, such as the institutional constraints under which agencies operate, to disfavor outsourcing administrative law into ordinary people’s linguistic or legal intuitions (whatever those may be).²⁷¹ There are also many countervailing concerns, such as fair notice and due process, that may justify curtailing expansive ordinary readings of delegating statutes.²⁷² But we also believe that for those inclined to remake administrative law through the eyes of the ordinary reader, it is worth grappling with facts rather than judicial hypotheticals about those ordinary readers. People are far more comfortable with broader interpretation of general-language delegations than many textualists have assumed, and they appear to be disproportionately uncomfortable with violations through underuse of delegated authority.

CONCLUSION

The MQD is the most influential interpretive development at the modern Supreme Court.²⁷³ Yet it lacks a compelling theoretical basis and a satisfactory explanation of its consistency with textualism, the interpretive theory held by the MQD’s advocates. The new “linguistic MQD” purports to solve both problems: because the MQD reflects ordinary understanding of language, it is a valid linguistic canon and thus consistent with textualism.

This Article has taken this linguistic defense on its own terms and studied the two central ordinary examples offered by its advocates. We find that ordinary people do not understand language as textualists have assumed. High stakes do not undermine knowledge or impact textual clarity, and people do not understand general delegations to be limited to only the most reasonable set of actions. These results challenge the essential empirical claims at the heart of the arguments for the linguistic MQD. While scholarly debate should continue, judges must take stock of the evidence and decide whether to employ the canon—and whether to do so in the name of linguistics and ordinary people. In our view, there is insufficient empirical support and theoretical clarity to cast the MQD as a valid linguistic canon. Arguably, the linguistic defense is the only viable theory for textualists to consistently employ the MQD. Thus, unless they offer a successful alternative, the results here support the broader conclusion that consistent textualists should not employ the MQD.

97 S. Cal. L. Rev. 1153

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Kevin Tobia*

* Associate Professor of Law, Georgetown University Law Center.

Daniel E. Walters†

† Associate Professor of Law, Texas A&M University School of Law.

Brian Slocum‡

‡ Stearns Weaver Miller Professor, Florida State University College of Law. For helpful comments and/or discussion, we thank Cary Coglianese, Anuj Desai, Ryan Doerfler, Rebecca Kysar, Edouard Machery, Ángel Pinillos, Larry Solum, Ilya Somin, Ilan Wurman, and audiences at the American Association of Law Schools Annual Conference, and at Cornell, Georgetown, NYU, and USC law schools. Thanks to the Southern California Law Review for excellent editorial assistance. We also thank Kirsten Worden and Michael Cooper for their research assistance.

The Discriminatory Religion Clauses

June 2024June 2024Wayne Batchis*

The Supreme Court’s decision in Carson v. Makin is the third in a trilogy of cases dramatically upending the meaning of the First Amendment’s Religion Clauses. Beginning with Trinity Lutheran v. Comer in 2017 and followed by Espinoza v. Montana Department of Revenue in 2020, the Court has moved forward with an aggressive project of transforming the Religion Clauses into a broad anti-religious-discrimination clause. In this paper, I trace this doctrinal devolution and argue that the Court’s novel reinterpretation is deeply misguided. By design, the Religion Clauses require discrimination—religion is to be treated differently from non-religion in a broad range of state action. The contemporary Supreme Court, however, has inverted this most basic insight. The Court’s new Religion Clause jurisprudence is also on a collision course with its burgeoning government speech doctrine. This doctrine recognizes that in a democratic polity, every policy choice entails paths not chosen. Government must be able to select its own message, and in turn, discriminate against those messages it wishes not to communicate, tempered by accountability at the ballot box. Granted, to say that discrimination is sometimes required under the Religion Clauses and the Government Speech Doctrine is not to say discrimination against religion is always constitutional. Protections against objectionable discrimination remain as vital as ever. The Court’s public forum doctrine, for example, protects free expression of religion from content-based discrimination when the government itself is not speaking. The heart of the Court’s recent Religion Clause decisions, however, is a jurisprudentially backward constitutional mandate that government actively subsidize religious speech to avoid a Religion Clause “discrimination” claim. It is a command that government express ideas it may not wish to express. The Court’s reimagining of the Religion Clauses is inconsistent with the First Amendment’s original meaning, potentially harmful to both government and religion, and in direct tension with the Government Speech Doctrine.

What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.

—Justice Sonia Sotomayor¹

INTRODUCTION

The Religion Clauses of the First Amendment require discrimination. Such an assertion may appear counterintuitive in an era prone to viewing subjects of controversy through a lens of equality, but by their very terms the Free Exercise Clause and the Establishment Clause demand that religion be treated differently from other objects of government attention. Today, however, the Supreme Court tells us a different story. Despite the clear language in the Constitution, the Court’s most recent jurisprudence suggests that the religion clauses do something very different than what the words chosen by their framers would suggest.

Beginning in 2017, the Court moved forward with an aggressive project of transforming the Religion Clauses into a broad anti-religious discrimination clause. In this paper, I trace this doctrinal misadventure and argue that the Court’s novel reinterpretation is deeply misguided. This approach, I contend, is precisely backwards. The Religion Clauses are not the Equal Protection Clause. The Court’s conflation of the Religion Clauses with anti-discrimination principles directly contravenes the design and intended function of this critical part of the First Amendment. It is also antithetical to a core principle of popular sovereignty: that a state—and hence, the people—must be able to choose its own priorities and be held accountable for the choices it makes, a key premise underlying the Court’s government speech doctrine.

There are many reasons to find fault in Constitutional doctrine. But whether it is substantive due process and the meaning of the word “liberty” in the Fourteenth Amendment or the right to keep and bear arms in the Second Amendment, such critiques typically boil down to this: the Court is either reading too far into the language of the Constitution or not far enough. It is either finding more meaning then is there, or too little. With the Court’s most recent turn in its religion clause jurisprudence something very different has occurred. Instead of going too far or not far enough, the Court has effectively inverted the very purpose of the Religion Clauses. These clauses, as designed by framers with an understanding of the weighty historical role religion has played in society and governance, carve out religion for a uniquely nuanced, one-of-a-kind treatment. Religion is special. It receives an unusual and distinctive protection from government intervention and is subjected to unusual and distinctive limitations on government support. In between these two constitutional poles established by the Religion Clauses, governments have discretion to make religion-related policy choices. But the unique Janus-faced design of the Religion Clauses sends a clear message: the Constitution requires that religion be treated differently.

Up until 2017, critics of the Court’s religion clause jurisprudence generally fell into the standard camps. They argued, for example, that the Court was restricting too much government activity that “respect[s] an establishment of religion,” as Justice Stewart did in his dissent in Engel v. Vitale addressing a nondenominational school prayer.² Such an exercise, to Stewart, simply did not rise to the level of establishing an “official religion.”³ Other critics have argued that the Court was not capacious enough in defining what it means to “prohibit” the free exercise of religion, such as Justice Brennan’s dissent in Braunfeld v. Brown, in which he asserted that making a religious practice “economically disadvantageous” should be a sufficient free exercise claim.⁴ These cases turned on the unique status of religion––and the extent to which government was treating it differently, as required by the Constitution. And in some contemporary cases, it is still taking this approach, moving the needle much more aggressively than in the past, siding with critics who have supported expansive, and distinctive “free exercise” protection.⁵ But as of 2017, the Court also started asking an entirely different, and contradictory question. Inexplicably, differential treatment of religion went from a Constitutional mandate to a Constitutional infraction.

The first sixteen words of the U.S. Constitution’s First Amendment are straight forward: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”⁶ The constitutional historian Leonard Levy has asserted that “Nowhere in the making of the Bill of Rights was the original intent and meaning clearer than in the case of religious freedom.”⁷ On its face this language prohibits the federal government from making or enforcing laws that do either of two independent things: respect an establishment of religion or prohibit the free exercise of religion. For over three-quarters of a century, this language has been understood to have been incorporated by the Fourteenth Amendment, and thus to apply with equal vigor to the states as to the federal government.⁸

In addition to defining precisely what is included in the category of laws “respecting an establishment of religion” or “prohibiting the free exercise,”⁹ the key interpretive challenge of these two clauses has been their inherent tension. In devising the unique structure of the religion clauses (or, we might say religion clause, singular, to emphasize the interdependence of the anti-establishment and free exercise principles) the framers left behind a distinctive jurisprudential task for courts, incomparable to any other part of the Constitution. What is required or implicitly encouraged by one clause might appear to be prohibited by the other––and in between there may be a zone—what the Court has long referred to as a “play in the joints”¹⁰—where a government may, but is not required, to advance the interests of free exercise or anti-establishment without being prohibited from doing so by the countervailing clause.

The precise contours of the religion clauses continue to be worked out. The drafting history of the religion clauses—particularly, the meaning the framers intended to give to an “establishment of religion”—leaves us with gaping holes in our understanding.¹¹ One notable area of disagreement in the late twentieth century, for example, has been the debate among jurists and scholars as to whether establishment demands so-called strict separation between church and state or mere nonpreferentialism, that is, not preferring one sect or religion over another.¹² Various justices on the Supreme Court have long presented differing framings of history in their Religion Clause jurisprudence, confirming that the historical “record does not speak in one voice.”¹³ But regardless of where one falls in these debates, and however “religion” may be defined, one thing seemingly remained a constant: the religion clauses of the First Amendment single out a thing called “religion” for disparate treatment. While the debate was not definitively settled over precisely where the lines of impermissible establishment or prohibition on free exercise should be drawn, what was clear was that the Constitution established unique lines for religion, prohibiting both governmental favoritism as well as active suppression.

This idiosyncratic Constitutional status of religion vis-à-vis government, which may be seen as a form of mandatory discrimination, is grounded in a set of founding-era philosophical beliefs about the need to protect religion from government and government from religion. As Thomas Jefferson wrote in an 1802 letter to the Danbury Baptist Association, the First Amendment “buil[t] a wall of separation between Church & State.”¹⁴ And while some scholars have disputed the significance of Jefferson’s famed “wall of separation” metaphor, in 1947 the Supreme Court affirmed Jefferson’s reading in forceful terms. It did not merely agree that “[t]he First Amendment has erected a wall between church and state,”^{¹⁵Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).} it emphasized that the “wall must be kept high and impregnable.”¹⁶

In 2022 however, the Court issued an opinion that was nothing short of radical. For the Religion Clauses, it was a world turned upside-down. This is not to say that changes had not been on the horizon. Before the recent seismic leap, the Court’s religion jurisprudence had been on a steady retreat from the Jeffersonian vision, particularly as we passed into the new millennium. But Carson v. Makin, capping off a trio of cases that began in 2017, was of a different magnitude.

Thomas Jefferson’s “wall of separation” between church and state has gone from a route impeded by a barrier “high and impregnable” twenty-five years ago, to one riddled with easily breached fissures shortly thereafter, to an obstruction not merely demolished but replaced and paved over by a wide road—with a shuttle bus travelers are compelled to ride and a fare they are compelled to pay. In Carson the Court did not merely backtrack from its longstanding prohibition on the expenditure of government funds on sectarian schooling; it held, for the first time, that the Free Exercise Clause prohibits a state from not using taxpayer money to fund religious education.¹⁷ A government, in other words, may be constitutionally obligated to do, what for most of the Court’s jurisprudential history addressing the religion clauses it had been forbidden from doing: paying for religious education.

This was so despite the glaring objection that such funding directly conflicts with a straight-forward, textual reading of the Constitution’s prohibition of any law “respecting an establishment of religion.”¹⁸ Government may be required to utilize taxpayer funds to pay for religious education in spite of the strong belief of the First Amendment’s framers “that no person, either believer or non-believer, should be taxed to support a religious institution of any kind.”¹⁹ Government may be compelled to provide an affirmative benefit to religion, despite an absence of evidence that it is in fact “prohibiting” a religion’s free exercise. Indeed, a state may be required to pay for religious education even in the face of its own strong policy reasons for not doing so. How did this happen? And what is the constitutional basis for this revolutionary reformulation?

Carson v. Makin and the two cases leading up to its holding transformed the Free Exercise Clause into an anti-religious-discrimination clause. The Religion Clauses however, were designed to produce the very opposite result, to ensure that religion was treated differently. Religion receives special treatment in the Constitution, precisely because the framers appreciated its unique power. Religion has the ability to inspire, to shape humankind’s deepest and most intimate sense of meaning and well-being, to establish and frame social obligations that supersede or conflict with civic commitments, and to ignite wars, social instability, and bloodshed. In the words of Roger Williams, the theologian and founder of Rhode Island whose religious advocacy for separating church and state left an indelible imprint during America’s colonial era, “[t]he blood of so many hundred thousand souls of Protestants and papists, spilled in the wars of present and former ages for their respective consciences, is not required nor accepted by Jesus Christ the Prince of Peace.”²⁰

While a vast sphere of human activity is open to government control, establishing an array of rules determining, for example, the boundaries of criminal and civil conduct, Williams emphasized that religion is different. “God requires not a uniformity of religion to be enacted and enforced in any civil state; which enforced uniformity, sooner or later, is the greatest occasion of civil war, ravishing of conscience . . . .”²¹ According to historian Leonard Levy, James Madison believed that state “[e]stablishments produced bigotry and persecution, defiled religion, corrupted government, and ended in spiritual and political tyranny.”²² It was clear that religion, in short, must receive special treatment in its relation to the state.

Carson, however, tells us that this is all wrong. Religion is instead to be treated the same as other human endeavors—at least, for certain purposes. Instead of standing as a mandate for distinctive treatment of religion, the newly reconfigured twenty-first century Religion Clauses, prohibit distinctive treatment. How did the Court justify such a profound—and some might say bizarre—reversal? One explanation is that the Court was drawing on the post-Civil War legacy of the Fourteenth Amendment and modern-America’s strong ethic of opposing inequality and discrimination in its many forms.

Perhaps some justices were also responding to an underlying feeling that religious adherents are looked down upon by societal elites and had not been invited onto the equality train with the same gusto as other identity groups; perhaps this jurisprudential turn was their chance at a ticket. Justice Scalia made such feelings clear in a 2004 dissent when he complained that

[o]ne need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, . . . its indifference [to those who dedicate their lives to the ministry], which involves a form of discrimination to which the Constitution actually speaks, is exceptional.²³

An aggrieved Justice Thomas, in his recent Espinoza concurrence, points the finger directly at other justices, lamenting that “this Court has an unfortunate tendency to prefer certain constitutional rights over others . . . The Free Exercise Clause . . . rests on the lowest rung . . . .”²⁴

It is possible that the Court is taking its cues from grievances such as these. But whatever the motive, the Court had decided, without acknowledging that it was doing so, to completely reimagine the Religion Clauses. In the Carson trio the First Amendment’s religion clauses are framed, not as they have been traditionally construed, as granting religion a unique constitutional status, but as a demand that religion effectively be placed on the same plane as everything else. Granted, this insistence on anti-religious discrimination is not evenly applied. As we shall discuss further, its flattening of the religion clauses is selective. In other contexts, the Court—in the very same term it decided Carson—concluded that a state employee, while acting within his official duties, has special rights of religious expression and practice that he would not possess outside of the religious sphere.²⁵

I. WHY DISCRIMINATION?

Although it may not be commonly acknowledged, government is in the discrimination business. It discriminates every time it “establish[es] Justice, insure[s] domestic Tranquility, provide[s] for the common defence, promote[s] the general Welfare, and secure[s] the Blessings of Liberty.”²⁶ All of these ends, eloquently laid out by the founding fathers in the Preamble of the U.S. Constitution, necessarily require America’s government of “we the people” to make choices. There are many routes to realizing, maintaining, and even defining domestic tranquility, the general welfare, and core liberties. And for every policy choice, there are paths not chosen. In a world of scarce resources and fierce disputes over how to allocate those resources to best achieve societal goals, government must not merely decide how much to allocate to particular goals, but which goals are worthy of its energies in the first place.

In a functional and sustainable democracy, this process of discrimination ideally keeps a polity on a trajectory of responsiveness and improvement. Government discrimination allows the state to make discerning choices that take into account an array of complex interests and counter-interests. It allows for action rather than paralysis in light of the needs and pressures coming from a multitude of directions, the often overwhelming and conflicting demands that are part and parcel of having to accommodate a large, diverse, and pluralistic population. Government discrimination in a working democracy means that hard choices will be made; costs will be weighed against benefits. But ultimately, if democracy is functioning in its ideal form, these choices will generally reflect societal values, interests, and goals, while helping correct for the errors of the past as they become evident.

Being “discriminating” thus may be associated with thoughtful, careful, decision-making. And indeed, the Constitution itself not only invites relatively open-ended policy-based discrimination rooted in democratic deliberation, but the document in many places calls for particular kinds of discrimination. It tells us in Article II that we must discriminate against those who are not “natural born” when choosing a president.²⁷ While the federal government has the power to “lay and collect Taxes,”²⁸ certain kinds of taxes are explicitly verboten (or “discriminated against”) such as tariffs “laid on Articles exported from any State.”²⁹ A similar form of discrimination characterizes the Religion Clauses of the First Amendment; religion is explicitly designated as a subject of government regulation to be treated differently from non-religion in a broad range of state action.

Granted, this was not the case under the initial conception devised at the 1787 Constitutional Convention in Philadelphia. The framers’ original notion was one in which the federal government was to be inherently limited to powers enumerated in Article I. Since regulation or establishment of religion was not explicitly included among these powers, a discriminatory carve-out for religion was thought to be superfluous. A bill of rights, including such special treatment for religion, was initially deemed unnecessary because as Madison explained, “[t]here is not a shadow of right in the general government to intermeddle with religion.”³⁰ Other founding era notables however, remained skeptical. Many states conditioned their support of the new charter on a pledge to make the implicit, explicit.³¹ Madison was ultimately persuaded of the merits of this alternative view held by many Anti-Federalists. He became concerned that

under the clause of the constitution, which gave power to congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, [congress may be] enabled . . . to make laws of such a nature as might infringe the rights of conscience, or establish a national religion . . . .³²

Madison realized that even under a regime of limited government in which federal powers are circumscribed by their enumeration in Article I, the government may use its lawful powers in ways yet unanticipated––and that this exertion of power may bleed into religious establishment or the freedom of individual exercise. Because the constitutional structure that limited government power could not be relied upon as the sole guarantor that church and state would be confined to separate spheres, as with other discrete topics, insurance in the form of the Bill of Rights was deemed expedient. And with religion, the remedy was especially distinctive. The two clauses of the First Amendment do not merely single out religion, but do so in an unusual Janus-faced manner suited to the sui generous dilemma that plagued the history of church-state relations. As Justice Robert Jackson explained, “the Constitution sets up [a difference] between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom . . . .”³³

Religion-related practices receive special discriminatory free exercise benefits exempting them from targeted restrictive governmental regulation that in non-religious spheres would constitute an ordinary part of democratic governance. A wide array of behaviors are targeted by government for distinctive kinds of punishment, prohibition, or penalty, but actions that relate to religion—unlike these other realms of behavior—may not be targeted. They receive a free pass from the Free Exercise Clause of the First Amendment. At the same time that government is generally free to choose to partner with, endorse or incorporate a diverse range of philosophical worldviews, values, or private institutions into its operations, religion may not be among them. Religion is uniquely burdened by the Establishment Clause’s distinctive prohibition on intermingling religion and government.

The two religion clauses simultaneously work together and are at odds with one another. On one hand, they may be said to serve similar ends. “An establishment, Madison argued, ‘violated the free exercise of religion’ and would ‘subvert public liberty.’ ”³⁴ On the other, they appear in direct tension, one seeming to facilitate religious practice by specially prohibiting government interference and the other seeming to discourage religious practice by specially withholding government largess. The clauses both demand unique benefits for, and impose distinctive burdens on, religion––and sometimes these simultaneous constitutional commands overlap, producing puzzling and uncertain results. It is this apparent paradox that set the stage for a peculiar species of constitutional doctrine, an anomalous and sensitive area of jurisprudence with one common baseline: religion must be treated differently.

II. DEFINING DISCRIMINATION

The Britannica Dictionary defines “discriminating” as “able to recognize the difference between things that are of good quality and those that are not.”³⁵

discriminating [https://perma.cc/5UN5-LKX3]. However, discrimination is a word with more than one definition. Discrimination may simply describe the act of “recogniz[ing] a difference between things.”³⁶ Today, the word “discrimination” is commonly understood as a pejorative. A country founded on egalitarian ideals, with a shamefully inegalitarian past and a present in which identity politics are paramount, has given the word “discrimination” toxic properties. This contemporary understanding aligns with another definition, courtesy of Oxford: to “discriminate” is “to treat one person or group worse/better than another in an unfair way.”³⁷

The First Amendment demands that government treat religion in ways that are arguably both “worse” and “better” than the treatment of other subjects garnering the government’s attention. However, such differential treatment is arguably the epitome of “fairness,” that is if one believes applying clearly stated rules of the U.S. Constitution with principled consistency may generally be understood to be a paradigmatic example of “fairness.” Thus, this latter––pejorative––definition is inapposite to the religion clauses. Yet, merely attaching the word “discrimination” to any government action—whether it be in a political speech, a New York Times op-ed, a Fox News commentary, or a Supreme Court opinion—casts reflexive doubt on that act’s legitimacy. Thus, the irony: use of the phrase “government discrimination against religion”—a constitutional mandate serving the interests of both government and religion—will likely strike the average listener as a nefarious wrong.

There are of course many forms of discrimination that are rightfully prohibited by the Fourteenth Amendment, such as invidious differential treatment based on an individual’s race, gender, or sexual orientation. Other forms of identity-based discrimination, including discrimination rooted in religious animus, may be precluded by statutory anti-discrimination laws. However, the existence of unfair or unjust forms of discrimination—that in some cases are forbidden by the Constitution—should not be used to create the misleading impression that the vital government discrimination required by aspects of the First Amendment is in fact an inherent evil that must be stamped out. Acknowledging that parts of the Constitution require or permit some forms of discrimination does not detract from the continued need (or ability under the law) to combat bigotry.

Granted, in certain contexts, evidence that a government is “discriminating” against or in favor of a particular religion may expose a potential Religion Clause violation. But this is not because the clauses contain a general anti-discrimination principle comparable to the Equal Protection Clause or statutory anti-discrimination law, rather, it is because they demand religion be treated differently from other objects of governmental attention.³⁸ With other government action, the default is that a democratic state generally must be able to make discriminating distinctions in its policy and enforcement choices.

Discrimination is a baseline for an effective governance. It is the stuff of democratic and legal contestation. Thus, for purposes of this article, I will generally use discrimination in its non-pejorative form—as a mere act of recognizing distinctions between different classes of things resulting in some form of differential treatment. Yes, “discrimination” can be unjust or unfair. “Anti-discrimination” laws and the scrutiny courts apply to invidious discrimination under the Equal Protection Clause of the Fourteenth Amendment have long been directed at such unjust forms of discrimination. However, discrimination can also suggest a kind of discernment that is more typically lauded—such as the ability to distinguish a Matisse or a rigorous scientific study at a top research university from the work produced by a seventh grader in their art or science class. In between the extremes there is enormous room to debate as to whether particular distinctions drawn and differences applied are beneficial or harmful, unfair or justified. And, the Court had historically made such “breathing room” between the discrimination required (or merely allowed) under the Free Exercise Clause and the discrimination required (or merely allowed) under the Establishment Clause, a central component of its religion clause jurisprudence.³⁹

Nonetheless, words are powerful things. They can be used to manipulate, as well as elucidate. Unfortunately, conflating various definitions of “discrimination,” which is all too common today, may serve the former end. A casual use of the word may create the false impression that particular differential treatment is morally or normatively suspect, when in fact it may be socially desirable––or even a legal requirement. Regretfully, the Supreme Court has gotten in on the act. The Religion Clauses of the First Amendment, very much unlike the Equal Protection Clause, mandate discrimination. Yet, as we shall see, recent religion jurisprudence has mischaracterized “discrimination” as a Constitutional wrong, instead of a Constitutional imperative.

III. HOW WE GOT HERE: THE LOCKE DISSENT FORESHADOWS A NEW FIRST AMENDMENT

A state may have free reign when it comes to establishing an official state bird, flower, or song, but the Establishment Clause insists that religion is different. That same state may not establish Buddhism or Zoroastrianism or Christianity as its official religion. And the Constitution commands not merely that government shall “make no law respecting an establishment of religion,” it may not prohibit “the free exercise thereof” either.⁴⁰ The state, in the guise of its police powers, may regulate, prohibit, punish, and penalize a full spectrum of human behavior, unless that behavior it is targeting constitutes “an exercise of religion.” While political and constitutional theorists may debate the reasons for this mandatory discrimination––many, including Madison, suggest it serves both the interests of the government and the respective religion that may not be established by the government.⁴¹ While one might debate the extent and nature of the qualitative benefits Madison foresaw, it is “discrimination” loud and clear.

The Court acknowledged this plain reading of the First Amendment as recently as 2004 in a decision by then Chief Justice Rehnquist. He pointed out, in the context of potential state funding for religious training, that the First Amendment’s unique approach to religion “find[s] no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings [in other words, that it would discriminate] is a product of these views, not evidence of hostility toward religion.”⁴² It was not surprising that his opinion allowing for a selective government scholarship program that excluded theological training read like an exercise in constitutional common sense, with just two dissenters. After all, it had only been two years since the Court, in a controversial 5–4 Establishment Clause decision, first allowed a school voucher program that provided tuition aid to private religious schools to stand.⁴³

However, beginning with Trinity Lutheran Church of Columbia v. Comer in 2017, followed by Espinoza v. Montana Department of Revenue in 2020, and most recently, in Carson v. Makin in 2022, the Court radically inverted this natural and widely accepted reading of the Religion Clauses. Admittedly, this novel interpretation of the religion clauses did not appear out of the ether. In that same case in which Chief Justice Rehnquist issued his short ten-page majority opinion rejecting the free exercise inspired demand that the State of Washington pay for a student’s post-secondary religious schooling, Justices Scalia and Thomas dissented and articulated the view that would become the approach of a Court majority beginning in 2017.⁴⁴

For many decades prior to this decision, the Court had interpreted the Establishment Clause as an outright bar on state funding of religious exercise.⁴⁵ However, beginning in the late 1990s, with the case of Agostini v. Felton,⁴⁶and culminating in Zelman v. Simmons-Harris in 2002, the Court orchestrated what Professor Nelson Tebbe has called a “contemporary turnabout” in its antiestablishment law.⁴⁷ Indirect aid to parents for vouchers to pay for religious education, and even some direct aid to religious institutions, was now a constitutional policy option for legislators across the nation.⁴⁸

With Zelman, the Court’s religion jurisprudence had just jumped from a world in which government funding of religious education had been presumed to be unconstitutional under the Establishment Clause, to one in which a closely divided Court tenuously held that it was permitted under certain narrow circumstances. In Locke, two dissenters, just two years later, were arguing that such funding was not merely allowed, but required under the Free Exercise Clause, foreshadowing the even more radical changes that were soon to come. Effectively, these two dissenters were arguing—in contravention of the well-established conventional textual reading—that rather than requiring religion be treated differently, the religion clauses instead imposed a broad anti-discrimination mandate. In just a decade and a half, this trial run of the anti-religious-discrimination Free Exercise Clause would transform into the majority view on the Court.

Here was the dissenters’ proposed statement of the rule: “When the State makes a public benefit generally available, that benefit becomes a part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause . . . .”⁴⁹ The logic might run as follows: “[P]rohibiting the free exercise” of religion under the First Amendment involves imposing some form of “burden” on such exercise. After all, a “prohibition” imposed by a savvy public official seeking to harm or diminish religion would not typically come in the form of a straight-forward law banning a particular religion or religiosity outright; the more strategically astute approach would be a law that indirectly makes certain elements of a religious practice more difficult, or impossible. Laws with an indirect impact on religion may burden religion. The question then becomes, how do we determine whether there has been such a “burden?” It would seem that to the Locke dissenters, if a “generally available” public benefit is not available to all, we may deem those to whom it is not available, “burdened.”

The dissent utilizes an unexpected dose of post-modern relativistic logic that puts government in the foreground. Their reasoning effectively suggests that it is outside forces—in this case the government—that establish reality for religious practitioners. A burden may be inflicted on religion not just by virtue of what government does to religion, but by virtue of what government does elsewhere. It is as if the dissenters were looking to Article III’s demand that compensation of federal judges “not be diminished during their Continuance in Office,”⁵⁰ and reasoning that a change in tax law reducing the mortgage interest deduction is unconstitutional because it makes purchasing a home for a judge more expensive, thereby “diminishing” the relative value of their compensation. The baseline for judging whether free exercise has been burdened is not the unique, longstanding, and deeply rooted practices of the particular religion affected by the government action (or inaction), it is government policy and the relative benefits it provides to various other societal actors. With this peculiar logical maneuver, a constitutional provision that on its face demands religion be treated differently—and protected in ways that other life philosophies or practices are not—is inverted to become one that prohibits religion from being treated differently.

At the same time, the dissent begs the question, what does “generally available” mean? Clearly, all public benefits are subject to rules dictating who is, and who is not eligible. A scholarship fund for post-secondary education will presumably not be available to five-year-olds, nor to those who wish to self-educate in isolation in the woods. The concept of “general availability” requires some sort of limiting principle. If “generally available” simply means that the public benefit at issue is offered in accordance with a relatively fixed non-discretionary rule for some category or categories of non-religious purposes or beneficiaries, this anti-religious-discrimination principle would have virtually limitless application. Considering the ubiquity of government in modern society, it would be an invitation for courts to mandate government-funded religion in virtually all spheres of public life.

For most of the jurisprudential history of the religion clauses, the Court’s primary challenge, considering the inherent tension between the Establishment and the Free Exercise Clause, has been to craft doctrines determining when, and how much discrimination is required. Must religion be discriminated against when public funds incidentally benefit religious institutions in a way that is comparable to how other (secular) institutions benefit, or only when the funds exclusively target and support a particular religion? Must an anti-discrimination law be discriminatorily applied, exempting hiring and firing decisions by religious organizations from the anti-discrimination mandates that otherwise would apply?⁵¹ If so, must such discriminatory exemption apply to just religious ministers, or to all employees of a religious organization? These are the sorts of questions the Court previously asked: to what extent, in what manner, and in what settings do the differential treatment rules of the religion clauses apply to religious organizations and practitioners? The two Locke dissenters inverted the doctrinal question in Religion Clause cases, reframing them as an anti-discrimination mandate.

To critique the dissenter’s approach is not to deny that a violation of the Free Exercise Clause may involve discrimination against a religion or a religious practitioner. A legal ban on Rosary Beads would both arguably prohibit the free exercise of religion for practicing Catholics and at the same time discriminate against Roman Catholicism, treating it differently from other religious practices and secular owners of beaded jewelry. A straight-forward reading of the Free Exercise Clause however, would suggest that it is the prohibition on religious exercise and not the differential treatment that constitutes the constitutional infraction.

As the Supreme Court has itself emphasized, in the Free Exercise Clause, “[t]he crucial word . . . is ‘prohibit’: ‘For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’ ”⁵² Not only is there no evidence of a general anti-discrimination principle in the text of the Free Exercise Clause, as mentioned earlier, there is an explicit pro-discrimination principle. That is, when a broad legal restriction impacts both religious and non-religious actors, it may be that as to those affected religious individuals “free” religious “exercise” is literally being “prohibited,” entitling them, but not the non-religious affected individuals, to a discriminatory exemption from the law.

Granted, the Court has not been consistent on the question of required accommodations under the Free Exercise Clause. In a 1972 case addressing a state’s compulsory high school education law that was at odds with the practices of a particular religious community, the Court concluded that the Free Exercise Clause demands an exemption.⁵³ In contrast, the 1990 case of Employment Division v. Smith suggested that such required differential treatment under the Free Exercise Clause should be construed narrowly.⁵⁴ Then in 2012, a unanimous Court—citing both the Free Exercise and Establishment Clause—concluded that religious institutions are entitled to a ministerial exemption that allows them to fire a teacher of secular and theological subjects, even if such firing would otherwise contravene applicable anti-discrimination law.⁵⁵ The Court explained that “imposing an unwanted minister . . . infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”⁵⁶

Regardless of the uneven application over the years, the pro-discrimination implications of the Free Exercise Clause are clear. As O’Connor points out in her Smith concurrence, “A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion . . . regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons.”⁵⁷ The free exercise remedy, if it is to apply, would only benefit the religious practitioner—freeing him or her up from an otherwise application restriction—while leaving non-religious individuals burdened. It would, in other words, discriminate between religion and non-religion, treating them differently.

The new anti-religious-discrimination interpretation, in contrast, ignores these basic mechanics of the religion clauses. Scalia’s dissenting opinion in Locke is riddled with surprisingly sloppy reasoning. To support his reading of the Religion Clauses, he draws on an analogy to racial discrimination, yet fails to mention that the Court’s jurisprudence there is rooted in an entirely different part of the Constitution, with completely different language, structure and purpose.⁵⁸ The Equal Protection Clause of the Fourteenth Amendment provides that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”⁵⁹ It was not designed with the doctrinally formidable Janus-faced structure (and resulting built-in tension) of the religion clauses—which has led the Court to acknowledge a “play in the joints” between impermissible laws “respecting an establishment of religion” and unconstitutional measures “prohibiting” religion’s “free exercise.”⁶⁰

In between the two clauses, in other words, there must be some room for laws that promote anti-establishment values but do not violate free exercise, and vice-versa. This is because laws aimed at avoiding establishment—in the direct sense—will almost invariably diminish free exercise; and laws intended to promote free exercise inevitably move toward establishment. It is a conundrum by design, built upon the Framers understanding of the precarious balance needed to maintain a safe buffer between church and state. The boundaries established by Court doctrine on either side necessitate judicial intervention into matters of religion that are not required of other spheres of government action. Yet, completely disregarding this unique structure of the religion clauses, Scalia instead drew a direct analogy to equal protection. To drive home his point, he argued that “A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead ‘play in the joints’ when haled into court.”⁶¹ But unlike the Equal Protection Clause this is precisely what the religion clauses require––discrimination—a delicate dance between anti-establishment and free exercise in which religion is given special treatment on both ends.

History is riddled with religious wars and instability. The Framers’ innovative formulation in the First Amendment was an attempt to protect the new nation from this same fate. Including only an Establishment Clause would have risked a government so intent on divorcing itself from religion that it would end up stymieing it—generating resentment and potentially violent revolt from passionate religious adherents who felt their free exercise was being choked. Include only a Free Exercise Clause and the danger for government and religion falls on the opposite end of the spectrum; a government openly facilitates and becomes intertwined with religious practice risking its politicization, and the perception (and likely reality) that the state is choosing favorites. Bitterness and backlash among those sects not granted politically favored status would naturally result. As an integrated whole, the two religion clauses were a Goldilocks solution.

As Professor Steven D. Smith observes, “[t]he words . . . ‘establishment of religion’ [and] ‘free exercise’—served to define the substantive area over which Congress was disclaiming jurisdiction.”⁶² It was that simple. There is nothing in the First Amendment demanding that if non-religious governmental benefits are distributed, religious institutions should be entitled to equivalent goodies. Quite the contrary. The Equal Protection Clause of the Fourteenth Amendment and the Religion Clauses of the First Amendment are not the same.

IV. THE RISE OF “NEUTRALITY”

How then to explain the dissenters’ conflation of principles from these two very different amendments in the Constitution—the Religion Clauses in the First Amendment and the Equal Protection Clause of the Fourteenth? It would seem that Scalia in his Locke dissent was drawing on the “neutrality” principle rooted in certain of the Court’s Establishment Clause decisions. In the seminal 1947 decision Everson v. Board of Education the Court upheld New Jersey’s reimbursement of bus transportation costs to parents sending their children to private schools, including those with a religious affiliation.⁶³ The Everson Court recounted the context in which the Framers’ drafted the religion clauses, stressing that early American settlers sought to escape the compulsion in Europe that they financially support churches favored by the government.⁶⁴ It emphasized—and included in full in the appendix—James Madison’s Memorial and Remonstrance, a tract written in opposition to a Virginia law that would have imposed a tax on its residents to support the established church.⁶⁵

Despite ultimately rejecting the Establishment Clause challenge, the Everson Court insisted that “New Jersey cannot consistently with the ‘establishment of religion’ clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church.”⁶⁶ It simply found that here, “[t]he State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.”⁶⁷ Under these circumstances the state was “a neutral in its relations with groups of religious believers and non-believers,”⁶⁸ not unlike if it were providing police assistance for children crossing the street––some of whom happen to be traveling to or from a religious school.

“Neutrality,” in other words, was a way of distinguishing innocuous general welfare laws that just happen to have, among their many beneficiaries, religious individuals or institutions, from those constitutionally problematic laws that “respect an establishment of religion” by using taxpayer funds for targeted support of religion. If anything, neutrality as used in Everson is about understanding that religion must be treated differently, that while government has broad discretionary power to single-out and benefit all-sorts of respective groups or individuals through the policy distinctions it makes, the one exception is religion. The existence of neutrality (that is, that benefits are provided without regard to the religious status of the beneficiaries) provides support for the conclusion that it is not the kind of law that unconstitutionally respects an establishment of religion. Neutrality suggests that government is not targeting religion qua religion for a specific benefit in violation of the Establishment Clause.

Neutrality was the principle that Scalia seemed to rely upon when he drew an analogy to equal protection in his Locke dissent, explaining that “[i]f the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.”⁶⁹ But, as we have seen, the “neutrality” of Everson is nothing like the general anti-religious discrimination rule the Locke dissenters portray it to be. The fact that the Court has turned to neutrality as a consideration in particular Establishment Clause settings does not transform the Religion Clauses more broadly, and particularly the Free Exercise Clause, into sweeping prohibition of religious discrimination.

The neutrality principle laid out in Everson is one evidentiary standard, among many, for determining whether or not a particular state may be targeting religion in a manner that is inconsistent with the Establishment Clause. Indeed, it is a method of determining when discrimination may be constitutionally required. Considering the fact that most policy choices by government will have some effect on some religious actors, neutrality is simply a device for separating the wheat from the chaff. By providing reimbursement of transportation costs for all schoolchildren—attending secular and religious schools alike—a state is no doubt promoting free exercise of religion. It is making it more affordable for religious parents to freely exercise their religion by educating their children at the religious school of their choice. The question then becomes: under these circumstances does the other religion clause demand discrimination, mandating that religion be treated differently and be denied, unlike the secular schools, this benefit?

Neutrality may be a useful tool in some establishment cases, but it is one that the Court has used only when appropriate, and not with consistency. Indeed, illustrating just how far the Court has moved on religion clause issues, we might observe that Everson itself was a closely contested 5–4 decision. Four dissenters were not convinced that a state should be allowed under the Establishment Clause, as part of a neutral public service program available to all parents, to reimburse families for the cost of sending their children to religiously affiliated schools.

The Locke dissent never explains why, by laying out a standard of “neutrality” in a narrow Establishment Clause context, Everson should now be understood to impose an equality rule under the Free Exercise Clause—requiring the Court to mandate, what in Everson, it just barely allowed. As we shall explore further, while establishment and free exercise may represent two ends of a tension rod, respectively they impose distinct kinds of constraints on government. Scalia, in his Locke dissent, conflates establishment and free exercise.

Justice Gorsuch utilized this conflation to profound effect in his 2022 majority decision in Kennedy v. Bremerton School District.⁷⁰ There he analyzed a public prayer by a public school coach at a public school event as largely a free exercise issue—whereas in the past the issue would almost certainly have been framed along Establishment Clause lines as an unconstitutional instance of a government official injecting his religion into a school-sanctioned activity. As the smoking gun, Gorsuch points out that “[b]y its own admission, the District sought to restrict [the coach’s] actions at least in part because of their religious character.”⁷¹ It sought to prohibit actions “appearing to a reasonable observer to endorse . . . prayer.”⁷² This was the “gotcha” moment to Justice Gorsuch; a conscientious choice by a school district to comply with the separation of church and state principles articulated in the Establishment Clause becomes damning evidence of a violation of neutrality under the Free Exercise Clause. This is a Religion Clause world turned upside-down.

In Kennedy the Court effectively overruled, indeed inverted, its Establishment Clause precedents recognizing an endorsement test.⁷³ Public endorsement of religion by government went from prohibited, to prohibited to prohibit. This blowtorch to the Court’s previous jurisprudence, however, cannot alter the fact that the First Amendment, by its very terms, demands discrimination; a state may for legitimate policy purposes designate taxpayer funds to a specific circus school, driver’s education school, agricultural school, or most any other school it deems worthy, except if it is targeting religious education. As we shall discuss in the next Section, consistent with the government speech doctrine, a state has largely unconstrained discretion to choose its own policies and policy messages, except with regard to religion.

V. THE EMERGING GOVERNMENT SPEECH DOCTRINE

There is some irony in this new muddying of the Religion Clause waters, as the Court has in recent years also moved toward clarification of another part of the First Amendment, one that resonates in the free exercise context: the government speech doctrine. The Free Speech Clause has over time come to incorporate a kind of anti-discrimination principle of its own. Despite reading as a simple across-the-board prohibition that “Congress shall make no law . . . abridging the freedom speech,”⁷⁴ modern free speech case law has come to the realization that the most potent threats to expression come in the form of laws that specifically target (or “discriminate” against) particular content or viewpoints. After all, virtually all laws could be said to impact expression; whether it is blocking traffic on an eight-lane highway, setting private property ablaze, or assaulting a police officer in front of the nation’s capital, if human behavior is observable, it may be framed as expressive. Broad exemptions from criminal and civil accountability merely because the harmful behavior at issue happens to be observable would be intolerable; this was clearly not what the framers of the First Amendment had in mind.

The protection of free expression must have some limiting principle. Thus, the Court has come to differentiate between state attempts to silence particular ideas or ideologies from mere content-neutral “time place or manner” restrictions or regulations directed at harmful behavior that incidentally affects expression. Under the Supreme Court’s free speech doctrine, the former discriminatory treatment of certain content or viewpoints is subjected to a much higher level of judicial scrutiny than the latter—neutral regulations that may in some sense be said to inhibit expression, but without regard to content or viewpoint.⁷⁵ As the end of the twentieth century approached, the Court began to explicitly come to terms with the inverse principle. When it is the government that is doing the speaking, it must have the ability to discriminate.

In a sense, like religion under the Establishment and Free Exercise clauses, “government speech” under the free speech clause is different. It is a democratic imperative that government be able to discriminate in the ideas it conveys. Government must have the ability to choose its own message. It is the culmination of its messages and expressive actions, after all, for which the people hold government to account at the ballot box. Government “speaks” by, among other things, subsidizing particular activities, employing individuals to propagate particular messages, or installing monuments that convey certain ideas.⁷⁶ This is, by its very nature, an exclusionary activity.

As the government chooses to spread one message, it necessarily declines to communicate others. It discriminates based on content or viewpoint. As a new administration takes the helm in response to a shift in voter sentiments, a government will likely change its message. A city government might remove a statue of Robert E. Lee from a public park. It might replace that statue with one depicting the civil rights triumphs of Martin Luther King, Jr. A group of Civil War reenactors may object. However, their recourse is not in a First Amendment that guarantees them a right to have the government send the message they want it to send. It is the political process. The Court made this point succinctly in a 1991 case that would come to be described as the first in a series of cases that form the government speech doctrine.⁷⁷

Rust v. Sullivan involved a government program that appropriated public funds for certain family-planning services.⁷⁸ In so doing, Title X of the Family Health Service Act stipulated that none of the allocated funds were to be used in programs that included abortion as a family-planning method.⁷⁹ As a plain-vanilla First Amendment free speech issue, one might assume that the government could not prohibit a counselor or physician from merely discussing a legal abortion as a medical option. Such discriminatory censorship directed at particular content might seem, on the most basic level, antithetical to core First Amendment principles. However, when it is the government that is speaking—as is arguably the case with a government program intended to promote certain goals but not others—the First Amendment prohibition on content or viewpoint-based discrimination is flipped on its head. We expect an anti-abortion administration to “be discriminating” when it comes to the messages it chooses to send about this volatile issue, just as pro-abortion rights voters would expect elected officials who run on a prochoice platform to propagate government speech that facilitates, rather than inhibits, the right to choose. To drive home its point, the Court in Rust provided this example: “When 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.”⁸⁰

Thus, if we return to the Court’s anti-discriminatory religion clause innovation, we can see another glaring tension. Even before this current Supreme Court’s most recent Religion Clause turnabout mandating certain government expenditures on religion, some had expressed concern that the growing prominence of the government speech doctrine might diminish previously viable Establishment Clause challenges—because of their potential framing as government speech.⁸¹ But under the Court’s new regime, the anti-religious-discrimination doctrine and the government speech doctrine are on a collision course. A constitutional mandate that government subsidize religious speech to avoid a free exercise “discrimination” claim (just because such subsidy is also available to certain non-religious recipients), is a command that it express ideas it may not want to express, using taxpayer money. It is counter-majoritarian, and directly contradicts the principle underlying the government speech doctrine. In Rust, the Court reiterated the common sense conclusion that “[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.”⁸² It turns out, however, that this is not the case; that is, at least according to the Court’s novel anti-discriminatory religion clause doctrine.

One might respond, however, as pointed out earlier, that religion is different. Might there be something about religion that would justify a diversion from the otherwise applicable government speech principle? Could it be that this difference merits an exception from the intuitive notion that a government—as a representative of “we the people”—should be able to choose which policies or messages to propagate, and which messages not to endorse, or simply not expend taxpayer resources on? The Constitution, after all, already carves out certain areas in which simple majoritarian politics will not do, requiring instead a super majority for policy change. Fifty-one percent of the population, in other words, cannot do away with probable cause; the Constitution would have to be amended.

One might argue, for instance, that as a fundamental constitutional right, the free exercise of religion should be exempt from the baseline government speech rule. This is quite similar to what was argued by the dissenters in Rust. They pointed to the fact that the right to choose abortion under the “liberty” guarantee in the Fifth Amendment was (at the time) a fundamental constitutional right. As such, selective discrimination against the expression of certain medically pertinent information facilitating that freedom of choice, even under the auspices of a government program, was unconstitutional.⁸³

The Court, however, rejected this argument. It also left little room to doubt the basis of this rejection. Citing Regan v. Taxation with Representation, a decision in which the Court upheld a narrowly selective subsidy for lobbying by certain types of organizations, it explained that a “legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.”⁸⁴ Thus, it would seem that the fundamental constitutional rights argument cannot explain the Court’s new anti-religious-discrimination doctrine. The Court’s government speech precedents directly conflict with today’s Court’s characterization of a failure to fund religious education as a “penalty” imposed on that religion.⁸⁵

VI. THE RADICAL TRINITY

If a jurisprudential entrepreneur were on the lookout for an ideal test case to sell a radical reformulation of the Court’s approach to the religion clauses, the facts of Trinity Lutheran Church of Columbia v. Comer would certainly fit the bill. On the surface, this case about the re-surfacing of children’s playgrounds in Missouri involved a highly sympathetic petitioner and addressed relatively un-weighty issues of church and state. To promote recycling and benefit children in low income areas, the state government allocated funds on a competitive basis to help nonprofit daycare centers replace older, harder playground surfaces with ones made from recycled tires.⁸⁶ Unfortunately for Trinity Lutheran Church, it discovered that its preschool and daycare center were ineligible.⁸⁷ Article I, Section 7 of the Missouri Constitution provided that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”⁸⁸ Missouri categorically disqualified religious organizations from receiving grants under the program.⁸⁹

Although the District Court did not mention the government speech doctrine by name, it upheld the Missouri program using reasoning consistent with the doctrine’s underlying principles. It drew an analogy to a case upholding a state’s “mere” choice not to fund a particular “category of instruction,”⁹⁰ suggesting that it was within Missouri’s discretion to determine the scope of its programs. This includes the choice not to subsidize playgrounds run by religious institutions with public money. In concisely rejecting a free expression argument, the District Court dismissed any notion that the program was designed as an “open forum” for speech.⁹¹

Consistent with the pro-discrimination implications of the religion clauses, it pointed to the state’s “antiestablishment” interests in preventing religious organizations from receiving government funds.⁹² Even if Missouri was not required to promote this interest to the extent it did––prohibiting any receipt of funds by religious organizations––significant “play in the joints” exists between what is prohibited by the Establishment Clause and what is required by Free Exercise.⁹³ The District Court reasoned that Missouri’s more robust prohibition (what we might certainly call “discrimination” against religion), supports the antiestablishment values built into the religion clauses.⁹⁴ Indeed, according to the Court, it would be patently “illogical” to presume that a choice not to fund religion to avoid potential entanglement with government necessarily reflects a hostility toward religion.⁹⁵ The District Court emphasized that the grant here would be paid directly to the religious organization, making the antiestablishment concerns even more compelling than programs designed to sever the direct link between government aid and religious institutions by putting the choice to spend in the hands of private individuals.⁹⁶

The Eighth Circuit affirmed the District Court decision, characterizing the appellant as “seek[ing] an unprecedented ruling—that a state constitution violates the First Amendment . . . if it bars the grant of public funds to a church.”⁹⁷ In no uncertain terms, it rejected the notion that a state could be compelled to provide taxpayer funds directly to a church: “No Supreme Court case” it explained, “has granted such relief.”⁹⁸ Moving to an approach in which every generally available public benefit becomes a baseline in which we might scrutinize the denial of comparable benefits to religious actors, would, according to the Circuit Court, constitute “a logical constitutional leap.”⁹⁹ It would fundamentally recast the Free Exercise Clause from a provision that demands religion be treated differently, to one that prohibits discrimination against it. It would require a repudiation of decades of precedent, and of our foundational understanding of how the religion clauses were to function. In blunt terms, the Circuit Court conceded that “only the Supreme Court can make that leap.”¹⁰⁰

But the Supreme Court had indeed changed. Beginning with this unassuming little case about playground surfaces, it was poised to make just such an unprecedented and radical shift in its religion clause jurisprudence. Granted, Chief Justice Roberts, in his majority opinion that overruled the Eighth Circuit in Trinity Lutheran, did not frame his decision in this way. Roberts has developed a reputation for strategic incrementalism, in which the seeds of what will eventually blossom into highly consequential doctrinal change are planted in unassuming soil.¹⁰¹ However, the Trinity Lutheran dissenters did not mince words. Emphasizing the high-stakes of this seemingly low-stakes decision, Justice Sotomayor tells us that “[t]his case is about nothing less than the relationship between religious institutions and the civil government . . . [t]he Court today profoundly changes that relationship.”¹⁰²

Roberts’s analysis begins by setting the stage for the Court’s new Free Exercise non-discrimination principle. He cites as a broad rule the rationale of a narrow Free Exercise decision that happened to involve targeted discrimination against a particular religious sect. Granted, the language in the 1993 case Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah¹⁰³ gave Roberts a good deal to work with. Although the decision was centrally about, as Justice Kennedy explained in the second sentence of the opinion, the “fundamental nonpersecution principle of the First Amendment,”¹⁰⁴ it was peppered with the ominous suggestion that impermissible religious discrimination was afoot. However, there is no reason to conclude that the mere relevance of discrimination in this case would convert the religion clauses into a general anti-discrimination rule. Here discrimination simply served as evidence that this particular law should be understood as an unconstitutional prohibition of the free exercise of religion. Like the neutrality principle discussed above, the discriminatory nature of the law was highlighted to demonstrate that things were not as they seemed; a law that may have appeared neutral on its face, was in fact targeting a particular religion’s practices, and thus, quite literally, prohibiting “free exercise” of that religion.

The dilemma with the religion clauses, as with free speech, is that there will necessarily be a vast number of laws aimed at addressing a wide range of social ills that have the subsidiary effect of in-part “prohibiting” the free exercise of particular religions (or “abridging” expressive activity). And the Court has never taken the position, for understandable reasons, that all such laws are unenforceable as to religious practitioners (or to those whose actions are, in part, “expressive”). As Justice Scalia opined, in a country of vast religious diversity, adopting a rule that would strictly scrutinize any neutral, generally applicable law that somehow could be said to intrude on a religious practice would be “courting anarchy.”¹⁰⁵ The doctrinal parameters of whether, and when, a religious exemption may be required under such circumstances continue to evolve. However, it is clear that laws advancing legitimate, non-religion-related policy ends that incidentally impact the free exercise of certain religious actors are not automatically deemed constitutionally suspect.

No doubt, in drafting the First Amendment the framers sought to prohibit the type of targeted religious persecution that was all too common in the old world.¹⁰⁶ But again, the concern was that government not prohibit free exercise through persecution, not that it refrain from treating religion differently from other subjects (something that it is required to do under a straight-forward reading of the text of the First Amendment). Government persecution might be achieved through direct measures that leave little ambiguity as to the intended objective. However, a government intent on punishing, stigmatizing, or driving away an unpopular religious minority might also use non-religion-related policy justifications as a pretext for doing so. It may craft laws that are intended to impede the practices of certain religious believers but justify those laws on legitimate non-religion-related public policy grounds. Or, a legislature might truly have mixed motives. Determining whether or not there has been a free exercise violation under such circumstances may prove difficult. Thus, in this context, identifying “discrimination” may become a vital tool in sussing out whether intentional religious suppression, or a mere side effect of an unrelated policy goal, is occurring.

Preventing animal cruelty was the stated policy goal in Church of Lukumi Babalu. Upon investigation however, this facially legitimate objective was found to have been a front for religious animus. The case involved four ordinances in the south Florida city of Hialeah. Together, they prohibited certain forms of animal sacrifice, a practice associated with the Santeria religion.¹⁰⁷ The ordinances were apparently spurred on by the imminent prospect of a Santeria church opening in Hialeah and the hostility and discomfort many residents and city council members held toward Santeria and its traditional practices.¹⁰⁸

The city argued that its ban on animal sacrifice was justifiable on non-religious grounds. It cited not just protecting animals from cruel treatment, as mentioned above, but also the health risks involved, the emotional injury to children that might result from witnessing such killings, and the interest in restricting slaughter to particular areas of the city.¹⁰⁹ The narrow ban however, was carefully crafted to exclude virtually all animal killing other than religious sacrifice, and even within this category it exempted kosher slaughter.¹¹⁰ The Court concluded that “Santeria alone was the exclusive legislative concern. . . . [K]illings that are no more necessary or humane in almost all other circumstances are unpunished.”¹¹¹ This was, as Justice Souter pointed out in his concurrence, “a rare example of a law actually aimed at suppressing religious exercise.”¹¹²

The Court unanimously struck down the ordinances as a violation of the Free Exercise Clause.¹¹³ It was from this unexceptional holding in Church of Lukumi Babalu—prohibiting a legal ban directly targeting practices that were a clear element of the sect’s religious exercise—that the Court in Trinity Lutheran extracts from the Free Exercise Clause a strikingly broad anti- religious-discrimination rule. The new rule requires taxpayer money be used to facilitate the religious mission of an organization—that is, if such funds are available to secular organizations.

Granted, the Church of Lukumi Babalu Court identified, through a close examination of the text of the ordinances at issue and the broader social context, blatantly discriminatory treatment targeting particular practices of a particular religious group. And at times, Kennedy used language to emphasize the significance of such unequal treatment, for example, when he stated that “[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.”¹¹⁴ In this context, this observation simply points out that a restriction on free exercise that is specifically directed toward a particular religion or religious practice is a First Amendment red flag. Such a law presents a sharp contrast to generally applicable laws that affect, and are directed toward, religious and non-religious actors alike. The fact of “discrimination,” in other words, helps courts home in on the most egregious and likely unconstitutional prohibitions on free exercise. Nothing in the decision, however, would suggest that it is the “discrimination” that is the free exercise offense, nor that unconstitutional “discrimination” should be interpreted to encompass a mere choice by a government not to provide financial support to particular religious organizations.

Indeed, Roberts’s reliance upon Church of Lukumi Babalu is particularly curious considering that it was issued just two years after Rust v. Sullivan. As discussed above, this is the seminal government speech case in which the Court explicitly affirmed a government’s power to discriminate—to be selective and make substantive distinctions as to the programs it chooses to fund or not fund.¹¹⁵ What is Chief Justice Roberts’s response to this apparent contradiction? He tells us that “Trinity Lutheran is not claiming any entitlement to a subsidy. It is asserting a right to participate in a government benefit program without having to disavow its religious character.”¹¹⁶

But how is claiming a right to receive government largess by “participat[ing] in a government benefit program” that one is not qualified to participate in, anything but an assertion of an “entitlement to a subsidy?”¹¹⁷ The Chief Justice’s artful reframing and rephrasing of Trinity Lutheran’s argument does not alter the fundamental facts. After this decision the government in Missouri is required to use taxpayer money to subsidize what on policy grounds it does not wish to subsidize. The Chief’s attempt to sugarcoat its radical decision notwithstanding, the unelected Supreme Court is telling an elected government how it must legislate and allocate its resources—a command that is in direct conflict with its own government speech doctrine.

The only other ostensibly on-point case cited by the Trinity Lutheran Court as support for its innovative religion clause non-discrimination rule was the 1978 plurality opinion in McDaniel v. Paty.¹¹⁸ Under the Tennessee Constitution, clergy were disqualified from serving as state legislators, and thereby not permitted to serve as delegates to a state constitutional convention.¹¹⁹ The Supreme Court struck down the exclusion on Free Exercise grounds. The plurality explained that this exclusion of ministers from state legislatures was a practice that was implemented in seven of the original thirteen States. It was instituted “primarily to assure the success of a new political experiment, the separation of church and state.”¹²⁰

However, the notion that clergy members should ipso facto be excluded from legislative positions remained controversial. This was so despite the fact that the First Amendment did not at the time apply to the states (it would not be explicitly incorporated until well after the ratification of the Fourteenth Amendment in 1868). Even James Madison, “the greatest advocate for the separation of state and church”^{¹²¹Andrew L. Seidel, The Founding Myth: Why Christian Nationalism Is Un-American 37 (2019).} and primary drafter of the Constitution’s religion clauses suggested (in contrast with Thomas Jefferson’s initial position) that disqualification resembled a kind of unjust punishment reserved for those who happened to choose religious professions.¹²² To Madison, the exclusion itself might even constitute a breach of the church-state separation, in that religion was to be exempted “from the cognizance of Civil power.”¹²³ One can thus see the parallel Roberts was attempting to draw with Trinity Lutheran—a law that was arguably “punishing” a playground operator, denying it the opportunity to benefit from a recycled tire resurfacing program, merely due to its religious affiliation.

However, with the help of the government speech doctrine, the distinction between Trinity Lutheran and McDaniel becomes immediately clear. A policy choice as to how the government will use taxpayer dollars—what kinds of interests or schools or playgrounds it will support—is fundamentally different from a law that makes distinctions as to who may legislate in the first place. The former represents a choice as to the policy message the government will communicate, a democratic imperative; the latter represents a choice to exclude certain voices from the possibility of being a part of that government, an anti-democratic exclusion. To suggest that the right to run for office in a democracy is a mere government “benefit” comparable to a government program that helps fund playground resurfacing¹²⁴ is to demean a core element of representative democracy. It conflates the ability to select a representative with the naturally selective product of representative democracy; it degrades them both by suggesting that a democracy-affirming Court intervention to prevent limitations on who we may choose as a representative is somehow analogous to a democracy-inhibiting limitation on a government to make policy choices.

McDaniel was also grounded in an individual right to practice one’s religion. The Court explained that “the right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions, or, in other words, to be a minister of the type McDaniel was found to be.”¹²⁵ McDaniel’s right to free exercise was being conditioned upon his surrender of democratic political participation, the choice to run for office. His desire to serve as a delegate to a state constitutional convention was not a request to have the state subsidize his religious activity, except to the extent than any government employee’s private activities might be said to be subsidized by a state salary.

Trinity Lutheran in contrast, involved not an individual’s rights, but the rights of a collective entity. It described its Child Learning Center’s mission as “provid[ing] a safe, clean, and attractive school facility in conjunction with an educational program structured to allow a child to grow spiritually.”¹²⁶ Trinity Lutheran, in other words, was seeking state tax dollars to advance its religious goals as a collective entity. The loss by Trinity Lutheran of the opportunity to participate in a subsidized playground surface program was nothing like the Hobson’s choice that confronted McDaniel. He was not seeking support from the government for his religious works. For McDaniel, under the Tennessee law he was forced to either forfeit his right to fully participate as a citizen or refrain from free religious exercise.

Chief Justice Roberts finds commonality in McDaniel and Trinity Lutheran, emphasizing the status-based nature of the discrimination in both cases.¹²⁷ He characterized the policy in Missouri as “expressly discriminat[ing] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”¹²⁸ The McDaniel Court similarly stressed the unique way the law in Tennessee disqualified the petitioner from office “because of his status as a ‘minister’ or ‘priest.’ ”¹²⁹ And indeed, the Court has in recent years frequently conflated the individual and the collective; but there can be good reason to acknowledge the differences between the two.

At the heart of classical liberalism is a respect for the individual. The notion that status-based individual deprivations are particularly repugnant is found in many parts of the Constitution itself—whether it is the prohibition on Bills of Attainder,¹³⁰ the demand that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,”¹³¹ or that the right to vote shall not be denied “on account of race, color, or previous condition of servitude”¹³² in the Fifteenth Amendment. Although the Court has extended many individual rights in the Constitution to collective entities, there is reason to be skeptical that the same set of concerns applies here.

Tennessee justified its disqualification of a certain category of individuals from elective office on the basis of the “leadership role” and “full time” promotion of “religious objectives” of those who choose to be ministers and priests.¹³³ Citing its goal of maintaining the separation of church and state, the state emphasized its concern that the religious commitments of ministers and priests would at times interfere with their duties as a state legislator.¹³⁴ Implicit in the plurality decision rejecting this rationale is the understanding that human beings are more than just their chosen avocation. A “unique disability” imposed on an individual because they “exhibit a defined level of intensity of involvement in protected religious activity”¹³⁵ is, quite simply, highly distinguishable from differential treatment of legal entities based upon their respective, narrowly defined legal purpose.

Nonetheless, the Trinity Lutheran Court finds the organization’s status-based disqualification from the recycled tire playground surface program to be relevant, and sufficiently analogous to the disqualification from office faced by McDaniel. As a result, the Court found Trinity Lutheran merited a similar legal outcome. The Court’s focus on the status-based nature of the religious discrimination at issue also served to distinguish Trinity Lutheran from the 2004 decision Locke v. Davey, the seemingly on-point precedent discussed previously in which the Supreme Court reached the opposite conclusion.

In Locke the Supreme Court upheld a scholarship program in Washington State that, although available for a full range of postsecondary education degrees, stipulated funds could not be used by students “pursuing a degree in devotional theology.”¹³⁶ Roberts reasoned that in Locke the student was not denied the benefit of the program on the basis of his religious status, as was true of Trinity Lutheran, but “because of what he proposed to do—use the funds to prepare for the ministry.”¹³⁷ Thus, for the Trinity Lutheran Court, the distinction between religious discrimination based on religious “status” and religious “use” appeared to be determinative.

The silver lining of deciding to have the opinion turn on this questionable analogy between the status-based discrimination against the individual minister in McDaniel and the collective religious institution in Trinity Lutheran, is that it established a rule that would, in theory, still allow for government to make crucial policy distinctions consistent with the government speech doctrine. As long as the government is not declining to spend on the basis of religious status, a government might still decline to draw on finite state resources to fund religious action. A government might conclude, for example, that spending on such religious “use” would be unwise, have benefits that are unsupported by evidence, reflect objectives inconsistent with the state’s current policy goals, or simply on balance represent a less weighty spending priority than other competing governmental aims.

This “status” versus “use” distinction, however, would not have staying power. Locke would ultimately be narrowed dramatically, largely relegated to doctrinal irrelevance. In Trinity Lutheran the status/use test was thrown into question in a concurrence by Justices Gorsuch and Thomas. Gorsuch, foreshadowing the Court’s eventual path in Carson, would have distinguished the contradictory outcome in Locke on the basis of its narrow exclusion of scholarship funds for devotional theology and the “long tradition against the use of public funds for training of the clergy.”¹³⁸ For Gorsuch, not only was the status/use distinction likely to be difficult to apply in practice, but it was also irrelevant for the purposes of First Amendment free exercise. The reason? To Gorsuch, “that Clause guarantees the free exercise of religion, not just the right to inward belief.”¹³⁹

But this is clearly incorrect. The language of the Free Exercise Clause does suggest a “guarantee.” It no more “guarantees” free exercise than the Free Speech Clause “guarantees” free speech or the Second Amendment “guarantees” that each citizen will be supplied with her own private arsenal. It merely prevents the state from interfering with or “prohibiting,” such freedom. Free exercise of religion may be hampered by friends or family, a wide range of private actors, or the free market itself. Practicing one’s religion may be time consuming, expensive, embarrassing, or stigmatizing. Indeed, it is precisely this kind of interpretive line-blurring of the Free Exercise Clause by Gorsuch that the government speech doctrine rejected when it came to the Free Speech Clause. One is not “guaranteed” an equal opportunity to have the government promote your message of x just because it has chosen to run a public service announcement promoting y.

VII. ESPINOZA AND THE TRINITY LUTHERAN AFTERMATH

Just three years later in Espinoza v. Montana Department of Revenue the Court broadened the applicability of this fallacious reading. The Montana Constitution included a provision that barred government aid to religious schools.¹⁴⁰ Under this “no-aid” provision that the State’s Supreme Court had rejected, a private school tuition assistance program that would have granted “a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students.”¹⁴¹ In Espinoza, building on the newly invented anti-religious discrimination principle, the U.S. Supreme Court struck down this provision in the Montana Constitution.

Like Trinity Lutheran, it homed in on the status/use distinction to explain why the analogous Locke holding should not apply.¹⁴² The Court emphasized that although both Espinoza and Locke addressed government scholarship funds used for religious education, the Montana Constitution prohibited all aid to sectarian schools simply by virtue of their being religious (that is, status) whereas the program in Locke excluded, specifically, just religious training (that is, use).¹⁴³ This case, the Court explained, “turns expressly on religious status and not religious use.”¹⁴⁴ It even took the time to refute claims that Montana’s Constitution was in fact about preventing “use” for religious education, responding that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.”¹⁴⁵ It asserted that “status-based discrimination is subject to ‘the strictest scrutiny.’ ”¹⁴⁶ Thus, a reasonable reading of the Court’s opinion would conclude that the status versus use distinction was central to this doctrine.

At the same time that it repeatedly emphasized its significance, however, the Court seemed to be readying itself to discard this distinction in the near future. It provided the caveat that “[n]one of this is meant to suggest that we agree . . . that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.”¹⁴⁷ Why then raise this distinction in the first place? As mentioned earlier, Trinity Lutheran was framed as a narrow decision addressing an even narrower, idiosyncratic, and relatively low-stakes set of facts. Allaying fears that it was anything broader than this, Trinity Lutheran’s footnote three had read: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”¹⁴⁸ Reliance on this status/use distinction, as well as the inclusion of this qualifying footnote, likely contributed to a majority that was able to bring along two justices (Breyer and Kagan) who shortly thereafter would pull away, dissenting in Espinoza and Carson.

Once the critical break with the religion clause precedent was achieved, like Lucy and Charlie Brown, the Chief Justice quickly pulled that football. It turns out Trinity Lutheran was no minor decision at all. In Carson, decided two years after Espinoza, the Court was clear that it was in fact Locke that was the minor decision. Leaving little ambiguity, Roberts asserted that “Locke cannot be read beyond its narrow focus on vocational religious degrees.”¹⁴⁹ Thus, just a short five-year time span had passed between Trinity Lutheran—adopting the status/use device as a central means of justifying its jarring divergence from Locke—and Carson—effectively retracting it. The unfortunate implication is that the status/use distinction served merely as a short-term results-oriented expedient—the proverbial camel’s nose that could push its way, ever so slightly, under the tent—facilitating the Court’s radical transformation of the Religion Clauses.

In Espinoza, the Court repeatedly stressed the completely inapposite, but rhetorically powerful pejorative conception of “discrimination” to justify its holding, explaining that the Constitution “condemns discrimination against religious schools and the families whose children attend them.”¹⁵⁰ But even more than Trinity Lutheran, both Espinoza and Carson address a species of governmental action that is inevitably, and necessarily, grounded in discrimination—the state’s choices about education. It is indeed difficult to imagine a more consequential sphere of government speech than the fine-grained discretion involved when a democratically elected government chooses the ideas, ideals, knowledge, and values to impart to future generations. No question, this is most apparent in the field of public education, where states and localities are in the position of determining every last detail of a curriculum. But, unless it is establishing an open public forum, there is no reason to believe that it is less relevant when a state decides which educational alternatives it will choose to subsidize, and which it will not. Such choices are a direct manifestation of the will of the people as exercised by their elected representatives.

Indeed, the only limitation on this foundational majoritarian precept that it is “the people” who decide (indirectly, through elections) on the substance of public education and private educational subsidies, is when it is overridden by the Constitution itself, which, of course, requires a supermajority to overrule.¹⁵¹ And one of the most notable examples of this can be found in the requirement of religious discrimination—that religion is subject to differential treatment—in the First Amendment. This requirement of religious discrimination in public education is well established in Court precedent.

In Epperson v. Arkansas, the Court confirmed that the religion clauses carve out an exception to the general and broad discretion a state has over its schools’ curricula.¹⁵² Under Arkansas law, public schools were prohibited from “teach[ing] the theory or doctrine that mankind ascended or descended from a lower order of animals.”¹⁵³ The clear motivation behind the law was to thwart teaching that conflicted with the biblical account of the origin of life.¹⁵⁴ Although the Court expressed a general reluctance to involve the judiciary in questions of educational policy, it was unequivocal that “the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.”¹⁵⁵ The Court reaffirmed this reading in the 1987 decision Edwards v. Aguillard.¹⁵⁶ This well-established understanding of the religion clauses, that educational choices which are otherwise within the discretion of state and local government must be judicially curtailed due to their religious nature, was not just contradicted, but inverted by Espinoza and Carson. The problem with “Montana’s no-aid provision” explains the Espinoza majority, is that it “bars religious schools from public benefits solely because of the religious character of the schools.”¹⁵⁷

Indeed, not only is the Court converting a constitutional principle that has always required differential treatment of religion into an anti-religious-discrimination rule, but government inaction—not doing what it was formerly required not to do by a conventional reading of the First Amendment—is understood as potentially coercive. As the Court explains, “[t]he Free Exercise Clause protects against even ‘indirect coercion,’ and a State ‘punishe[s] the free exercise of religion’ by disqualifying the religious from government aid . . . .”¹⁵⁸ Roberts, in other words, is taking Scalia’s Locke dissent logic one step further: not providing a government benefit is not just a relative “burden” on religion, it is a coercive punishment. Government benefits are so alluring that Jefferson’s separation of church and state is itself unconstitutional. The wall of separation is coercive because the church on one side will see the bag of goodies on the other side and feel compelled to un-church itself––to shed its religious identity so it too can get a hold of those benefits.

VIII. THE ASYMMETRIC AND INTERDEPENDENT RELIGION CLAUSES

The Alice in Wonderland feel of the Court’s logic may be dizzying. But it is the built-in tension between the two religion clauses that makes the Court’s startling logical backflips possible. The Court is effectively borrowing concepts culled from one side of its religion clause decisions and lending them to the other. Since the two clauses were designed to pull in two different directions and operate in fundamentally different ways, predictably, the results are perverse.

While “neutrality” is drawn from Everson, “coercion” can be found in decisions such as 1992’s Lee v. Weisman. In that case, a student made an Establishment Clause challenge to a public school practice of inviting clergy members to give nondenominational prayers at graduation ceremonies. Although a passionate concurrence by Justices Blackmun, Stevens, and O’Connor argued for a more robust separationist rationale, the majority nonetheless struck down the policy, asserting that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”¹⁵⁹ Students, in other words, would feel peer pressure to conform to, and perhaps participate in, the religious exercise. This anti-coercion principle was firmly rooted in the Court’s Establishment Clause jurisprudence; the Court’s sights were set on identifying those types of government actions that cross the unconstitutional line of “respecting an establishment of religion.”

The Lee Court acknowledged that attendance at the ceremony was technically voluntary, but in the eyes of most students, it was a crucial rite of passage.¹⁶⁰ The Court explained that “[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.”¹⁶¹ The Court in Espinoza and Carson takes this Establishment Clause principle, and applies it as if it were about free exercise. This is a mistake. These two clauses may work in tandem, but they function differently, as their disparate textual construction clearly suggests. The latter simply prevents the government from actively interfering with or “prohibiting” religious practice, whereas the former involves the thornier question of what it may mean for a law to “respect” an establishment of religion. As constitutional historian Leonard Levy explains, “Congress can pass laws regulating and even abridging the free exercise of religion without prohibiting it altogether.”¹⁶² And not only does the Court, with little theoretical justification, blithely transfer an Establishment Clause test to a free exercise issue, it quietly alters its relative rigor.

As this concept of “coercion” is understood to be ever more capacious on the Free Exercise side of the ledger, including the “indirect” coercion of merely not having one’s religiously informed policy preferences fulfilled, the meaning of Establishment Clause coercion gets appreciably narrower. In Kennedy v. Bremerton School District, decided just one week after Carson, the Court appeared untroubled by establishment concerns because there was “no evidence” that, during a public prayer by an influential school employee at a public school event, “students [were] directly coerced to pray with [the coach].”¹⁶³ Thus, in the free exercise context, it would appear that a highly tenuous, and certainly debatable “indirect” form of coercion is sufficient to impose a constitutional demand that taxpayer money be used to fund private religion. At the same time, a popular football coach publicly praying “under the bright lights” of a stadium full of spectators,¹⁶⁴ while “on duty,”¹⁶⁵ and implicitly inviting student participation, was not a “direct” enough form of coercion to constitute an Establishment Clause violation. This coach had “made multiple media appearances to publicize his plans to pray at the 50-yard line,”¹⁶⁶ and was someone from whom students might naturally seek favorable treatment such as extra playing time and recommendation letters¹⁶⁷. . Justice Sotomayor, in dissent, characterizes this newly watered down establishment test as “a nearly toothless version of the coercion analysis.”¹⁶⁸ The effect is to invert the very meaning of the religion clauses, taking what would have been an unconstitutional violation of the Establishment Clause under the Court’s precedents—the injection of religion into the public schools—and transforming it into a constitutional requirement under the Free Exercise Clause.¹⁶⁹

Considering the ubiquity of both law and religion, and the fact that most policy will interact with religion in a multitude of ways, the task of drawing the establishment line is arguably much more difficult and subtle than drawing the free exercise line. On its face, the text of the Free Exercise Clause—a simple ban on governments prohibiting the free exercise of religion—would not seem to support a reading that demands active promotion by government of religion to preempt indirect coercion of religious believers who might feel left out. On its face, the Free Exercise Clause requires answering just two questions: First, how is a particular religion practiced, or exercised? Second, does the law at issue in fact prohibit that religion or its individual practitioners from practicing in such manner? The text of the Establishment Clause, in contrast, suggests that any state activity associated with, or part of a regime of, government establishment, should be subject to judicial scrutiny. The word “respecting” gives the Establishment Clause a degree of play that that the word “prohibiting” in the Free Exercise Clause does not.

As with all constitutional language, textual analysis allows for a range of plausible interpretations; the meaning given to both the word “prohibiting” and “respecting” is not fixed and will naturally be context dependent. As Randy Barnett explains, “[a]lthough most words are potentially vague, we do not face a problem of vagueness until a word needs to be applied to an object that may or may not fall within its penumbra.”¹⁷⁰ The Janus-faced nature of the religion clauses—pushing in two different directions at the same time—heightens the interpretive challenge. Any doctrinal test by the Court that attempts to put flesh on the bones of the purportedly vague language in one religion clause, what Barnett refers to as a process of constitutional “construction,”¹⁷¹ must remain cognizant of its potential interaction with, impact on, or inconsistency with, the other clause. The Court’s insight of a “play in the joints”—a necessary degree of governmental discretion in enacting policies that promote the principles of one clause without violating the other—is consistent with this penumbral overlap.

Nonetheless, under many factual circumstances the same test simply cannot apply simultaneously under both the Establishment Clause and Free Exercise Clause without producing irreconcilable outcomes. The coercion test, so casually transferred from establishment to free exercise in Espinoza provides an example. The prayer in Lee is a violation of the Establishment Clause’s anti-coercion principle, but under the logic of Espinoza a constitutionally repaired, prayer-free graduation ceremony would be unconstitutionally coercive to religious students under the Free Exercise Clause by depriving them of a government benefit available to secular students. A free exercise anti-coercion rule would suggest that due to this deprivation, religious students would be indirectly coerced to either give up the benefit of publicly funded education and pay to attend a private religious school or relinquish their ability to partake in a religious graduation ceremony.

James Madison emphasized the importance of separation for the good of both government and religion, seeing it as a way of “[guarding against a] tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them . . . .”¹⁷² Roger Williams focused primarily on the way separation protects the church from control by the state.¹⁷³ Yet, the majority in Espinoza dismisses this concern in just a few short paragraphs. Inverting historical reality, it treats Montana’s claim that “the no-aid provision promotes religious freedom”¹⁷⁴ as the novel view, and its own recent invention of the anti-discrimination religion clauses as the constitutional baseline.

Consistent with an understanding that extends back hundreds of years, the state argued that “the no-aid provision protects the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the government out of their operations.”¹⁷⁵ As if this deeply-rooted Madisonian understanding were a fringe perspective, the Court dismissed allowing an “infringement of First Amendment rights” on the basis of what it characterized as “a State’s alternative view.”¹⁷⁶ But this is no “alternative view.” The dangers of the politicization of religion, the resentments taxpayer funding of religious institutions may engender, and the pressure governmental oversight and regulation would naturally place on the church, were not lost on the founders.

Effectively dismissing this wisdom in a single paragraph, the Court justifies its decision by emphasizing how its prior cases have allowed programs that provide aid to religious organizations where “attenuated by private choices.”¹⁷⁷ It then goes on to conflate freedom from government interference—these “private choices” that are rightfully protected under the Free Exercise Clause—and a right to non-discriminatory government benefits—which is, to the contrary, in direct tension with a traditional understanding and reading of the religion clauses. It achieves this slight-of-hand by citing for support its precedents that have “long recognized the rights of parents to direct ‘the religious upbringing’ of their children.”¹⁷⁸ Of course, the freedom to opt-out of a majoritarian government program never implied a right to demand that the government offer an alternative version of that program that is tailored to one’s particular tastes.

Yet, in Carson v. Makin this is precisely what the Court requires of the state of Maine. The program at issue there, as discussed previously, differed from Espinoza in that it had limited its applicability based on the substance of the educational content of a school rather than its religious status. The Maine tuition assistance program was available to parents wishing to send their children to private schools in sparsely populated areas of the state where local government does not operate its own secondary school. Funds were ineligible however, if the desired school “promotes a particular faith and presents academic material through . . . that faith.”¹⁷⁹ The state explained that the private school option was designed to offer a “rough equivalent” of the secular public schools available in more populous parts of the state. The Carson family, however, wanted to send their daughter to a private school with a “Christian worldview [that] aligns with their sincerely held religious beliefs.”¹⁸⁰ Under the Court’s new anti-religious discrimination reading, the state was now required to use taxpayer funds to accommodate the family’s religious tastes.

IX. THE DEMISE OF THE STATUS/USE DISTINCTION

Unless a majoritarian democracy is structured to require unanimity, it is inescapable that some minority of the population will be unhappy with the substantive policy choices the government makes. As Alexander Tsesis has pointed out, “[there are] disagreements about the wisdom of myriad government programs, policies, statutes, and priorities.”¹⁸¹ A distinct policy choice to fund only private schools with an evidence-based curriculum, is, of course, bound to displease those who prefer a faith-based approach to education. However, a state may have many legitimate policy reasons for declining to fund religious education, and these reasons may be independent of a desire to adhere to a “stricter separation of church and state than the Federal Constitution requires.”¹⁸² Most obviously, a government may conclude that an epistemological approach grounded in faith is in tension with a commitment to the scientific method. Its reasoning, in other words, may relate directly to its judgment as to how it will best fulfill its educational mission. The Court acknowledges that only private schools that “meet certain basic requirements” were eligible to receive the funds under Maine’s program.¹⁸³ Yet, somehow, four pages later, the Court characterizes it as “a neutral benefit program,” seemingly forgetting that the state established detailed criteria laying out just what attributes schools must have if it is to fund them.¹⁸⁴

With Carson, the Court thus ratchets up its novel anti-religious-discrimination interpretation of the religion clauses to include substantive as well as status-based distinctions. As the Court explains, “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”¹⁸⁵ The former was at least arguably one step further removed from the kind of policy discretion essential for responsive democratic judgment––a discretion that informs the Court’s own government speech doctrine. In theory, status-based distinctions are also potentially indicative of a substance-free animus or discriminatory impulse against religion. But “use-based discrimination,” as the Court puts it, is just ordinary lawmaking. As preeminent constitutional historian Leonard Levy unequivocally concluded, “the fact is that no framer believed that the United States had or should have power to legislate on the subject of religion.”¹⁸⁶ Yet, perversely, under the Court’s new anti-religious-discrimination doctrine, states now must do so. As of 2022, the substantive educational content a state chooses not to expend its resources on is subject to the Court’s intrusive new religion clause rule.

Although those who want their children to receive a faith-based education are by no means precluded from making this choice, according to the Court the mere fact that they must pay for such education themselves (while the choice to utilize a secular private school would be supported by the state) exerts coercive pressure on their choice.¹⁸⁷ A failure to fund faith-based approaches to education does not just result in the natural disappointment felt by those in a democracy whose policy preferences do not go completely fulfilled, such failure to spend “ ‘penalizes the free exercise’ of religion.”¹⁸⁸ The implications of this conceptualization are quite stunning. The Supreme Court is effectively depriving democratic governments of their discretion to determine their spending priorities in one of the most consequential and democratically hard-fought domains: public education.

X. THE LIMITING PRINCIPLE PROBLEM

Now, some might be inclined to see the concerns above as alarmist. Carson, after all, addresses just one case-specific state program. However, it is difficult to see the stopping point of the Court’s logic. The Court’s novel anti-religious discrimination rule lacks a limiting principle. In Trinity Lutheran, Roberts seemed at least mildly attuned to this potential concern by emphasizing the purportedly status-based nature of the discrimination. But, consistent with the Chief’s camel’s-nose-under-the-tent approach to doctrinal change, after Carson, any government program might become the next target of an allegation that it is discriminating against religion, and therefore violating the Free Exercise Clause. Under the Court’s newly expansive anti-religious-discrimination rule in Carson, simply not offering a comparable religion-based alternative to any secular state benefit presents a potential constitutional infraction. What might the future portend under such a regime? We might anticipate a kind of constitutionally mandated menu-based governance in which state resources must be shared equally among religious and non-religious options.

For religion, this vision may ultimately prove to be self-defeating. Government resources are limited, as is the tolerance of the populace for ever higher taxes. Constitutionally mandated religious alternatives will become costly and will ultimately be subjected to the same type of politicized, compromise-laden, and messy process that is at the heart of all spending decisions in a democratic polity. As a constitutionally imposed unfunded mandate, religion would lose its prized independence.

Granted, the anti-religious-discrimination impulse is understandable. As mentioned, the new anti-religious-discrimination Free Exercise principle is no doubt rooted to some extent in a broader concern that religion, religious belief, and religious practitioners have been unfairly mistreated and disparaged by a secular society. However, those who would like to see an expanded role for religion in the public sphere, even those who support taxpayer subsidies of religion in certain areas, may ultimately find themselves deeply troubled by the ultimate consequences of the slippery-slope the Court has erected. The Court’s radical re-interpretation of the religion clauses may prove self-defeating, for government and religion. Without a limiting principle, it cannot be contained.

XI. THE PUBLIC FORUM DOCTRINE TO THE RESCUE

All of this is not to say that there is no place for a constitutional principle prohibiting, in some contexts, discrimination against religion. Just because the religion clauses demand the opposite, does not mean there are not other settings in which religion may be protected from government. The Free Exercise Clause, most obviously, protects religion by forbidding targeted prohibitions on free exercise. But those who would like to see a greater presence of religion in the public sphere have an alternative constitutional hook to grasp. Another First Amendment doctrine, derived from the Free Speech Clause, does include an anti-discrimination rule that serves to protect against forms of religious discrimination.

The public forum doctrine prohibits the government from imposing viewpoints, and sometimes content-based, discrimination on private speech; and the Court has concluded that this restriction extends to religious expression.¹⁸⁹ The Court reminded us most recently of this principle in Shurtleff v. City of Boston. The case involved a government program that over time allowed hundreds of private groups to fly their flags outside of Boston’s city hall. The city, however, denied such opportunity to a Christian group. In ruling against Boston on free speech grounds, the Court explained that “[w]hen a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’ ”¹⁹⁰

If the government speech doctrine can be said to be pro-discrimination—rooted in the understanding that a democratically accountable government must have the ability to be selective as to what policy messages it will, or will not, send—its cousin, the public forum doctrine, forbids discrimination in government-owned, funded, or controlled forums. Once a government opens property or a program up to the broader public, establishing a public forum—or to a select portion of the public for more circumscribed purposes, establishing what the Court has called a “limited” public forum—it may not discriminate on the basis of “content” (or merely “viewpoint” where the public forum is limited).¹⁹¹ Government speech and public fora may be conceived as two poles on opposite ends of a single continuum, with government having almost complete control over what is or is not expressed on the government speech end and minimal power to restrict or dictate expression on the other.¹⁹² The critical point is that the public forum doctrine, unlike the Court’s new anti-religious-discrimination rule, has a clear limiting principle: a government program must fall within the definition of a public forum (or limited public forum) for religion to receive protection from discrimination. Otherwise, a policy choice, and any messages associated with it—unless, of course, it “prohibits” or “respects an establishment of religion”—would be treated as government speech.

Thus Justice Thomas, in his Espinoza concurrence, begs the question when he criticizes the “strict separation” approach to the religion clauses for the way it would ostensibly remove “the entire subject of religion from the realm of permissible governmental activity . . . operat[ing] as a type of content-based restriction . . . .”¹⁹³ Religion would not be banished from the public sphere under the traditional, straight-forward reading of the First Amendment advocated in this article; the impact of the Religion Clauses would simply turn on whether or not the government itself is speaking or whether its “activity” was creating a public forum. As the Court has repeatedly reaffirmed, government speech is all about content-based restrictions on speech—both the discriminating choices government makes as to what messages it will or will not devote its resources to, and the structural boundaries enshrined in the Constitution that may similarly shape, limit, or direct its expressive choices. A public forum, on the other hand, does demand that the government avoid content or viewpoint-based discrimination.

Indeed, this is where a misguided concurrence by Justice Kavanaugh in Shurtleff gets it so wrong. He seeks to supplement the majority’s opinion by emphasizing that a government does not merely violate the Establishment Clause by treating religion equally to other government beneficiaries. Equal (favorable) treatment of religion by government is permissible under certain circumstances in accordance with both the public forum doctrine and the “play in the joints” religion clause principle long accepted by the Court.¹⁹⁴ But in startlingly broad terms, Kavanaugh goes on to assert that “a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.”¹⁹⁵ Confined to public fora, such a statement of the rule may be true; but outside of these confines, such a rule would impose constitutionally illimitable unfunded expressive mandates on governments, potentially violating anti-establishment principles and the core premise of the government speech doctrine along the way.

In contrast, drawing a boundary between a public forum—where religious expression would be protected from discrimination—and government speech—where government would have the option and sometimes obligation to discriminate against religious messages––is remarkably consistent with the inherent tension built into the Religion Clauses. It brings the First Amendment full circle, connecting the Speech and Religion Clauses in a logically coherent way. Governments may establish public fora to facilitate private speech, as governments have a rich and important history of doing, whether it is a public park, the after-hours use of public facilities for associational meetings, or a public university’s student organization program. These are venues that may be owned and maintained by the state, but as public forums, the speech that occurs there is protected and not presumed to represent the government’s voice. As a result, such expression, even if overtly religious, is unlikely to raise traditional Establishment Clause concerns; it is unlikely to generate the impression of government endorsement or to have a coercive effect. Government, in other words, would be free to facilitate free exercise values in a way that is cognizant of Establishment Clause values, while at the same time acting consistently with free speech doctrine.

CONCLUSION

The Supreme Court’s decision in Carson v. Makin is the third in a trilogy of cases dramatically upending the meaning of the First Amendment’s Religion Clauses. Beginning with Trinity Lutheran in 2017, and followed by Espinoza in 2020, the Court has moved forward with an aggressive project of transforming the Religion Clauses into a broad anti-religious-discrimination clause. In this paper, I traced this doctrinal devolution and argued that the Court’s novel reinterpretation is deeply misguided.

By design, the Religion Clauses require discrimination—religion is to be treated differently from non-religion in a broad range of state action. The Establishment Clause targets religion specifically by prohibiting laws that intermingle government with religion in an impermissible manner—whereas intermingling government with other philosophies, worldviews, institutions, or sets of values is a perfectly ordinary and generally acceptable aspect of policymaking. The Free Exercise Clause likewise forbids government interference with religious practice—whereas government is certainly free to, and is indeed expected to, interfere with a vast range of non-religion related conduct deemed to violate criminal and civil law. Religion, in short, is different. The contemporary Supreme Court, however, has inverted this most basic insight.

The Court’s new Religion Clause jurisprudence is also on a collision course with its burgeoning government speech doctrine. That doctrine recognizes that in a democratic polity, every policy choice entails paths not chosen. Government must be able to select its own message, and in turn, discriminate against those messages it wishes not to communicate. While there are some exceptions to the rule—specifically, the boundaries set by the Constitution itself—the default is governmental discretion, tempered only by accountability at the ballot box. Thus, the Religion Clauses, in conjunction with the government speech doctrine, mandate that government either be free to speak with its own voice when it is acting within the “play in the joints” in between the two clauses, or treat religion distinctly—to discriminate—when required to do so under the Constitutional mandate of establishment or free exercise.

To say that discrimination is required under the Free Exercise or Establishment Clause is not to say discrimination against religion is always constitutional. Outside of the Religion Clauses, other protections against objectionable discrimination remain. The Court’s public forum doctrine, for example, protects free expression of religion from content-based discrimination when the government itself is not speaking. Adverse or favored treatment by government targeting religion generally, particular religious sects, or particular religious practices, may be impermissible. But when it comes to the Religion Clauses, these are circumstances in which the discrimination provides evidence that the government is either prohibiting free exercise or making a law respecting an establishment of religion. The discrimination itself is not the Constitutional offense. Acting as if it is, is highly misleading. The Religion Clauses provide nothing like the broad anti-discrimination mandate today’s Court imputes to them. They demand the opposite.

The heart of the Court’s recent trilogy of cases—from Trinity Lutheran v. Comer to Carson v. Makin—is a constitutional mandate that government subsidize religious speech to avoid a Religion Clause “discrimination” claim. It is a command that government express ideas it may not wish to express. The Court’s reimagining of its Religion Clauses jurisprudence is inconsistent with the First Amendment’s original meaning, anti-democratic, and in direct tension with the government speech doctrine.

97 S. Cal. L. Rev. 367

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Wayne Batchis*

* J.D., PhD.; Professor and Director of Legal Studies, University of Delaware, Department of Political Science and International Relations.

Justices on Yachts: A Value-Over-Replacement Theory

April 2024April 2024Peter Salib & Guha Krishnamurthi

The Justices have it made. On top of their government salaries, guaranteed until retirement or death, they are pampered with luxuries supplied by various wealthy benefactors—billionaire friends, big publishing houses, and well-funded nonprofits. These benefactors make (and forgive) large loans, book fancy resorts in exotic locations, and save seats on their yachts—glacial-iced cocktails included. The public is rankled. Something seems amiss, but it is hard to say exactly what. There is scant evidence of any quid pro quo. None of this luxury treatment has likely changed any Justice’s vote in any particular case. Thus, the problem here is not run-of-the-mill corruption.

In this Article, we explore an alternate theory. These donors are not trying to influence individual votes; they are trying to influence Justices’ decisions about whether to keep voting at all. The Justices’ government salaries are generous. But their private-sector earning potential is far higher, providing a strong incentive to retire relatively early and maximize lifetime consumption. Supplying a sitting Justice with a luxury lifestyle reduces the retirement incentive, “locking in” the Justice as a voter in more cases.

We explore this strategy for influencing the Court and model its expected results. We argue that, rationally, the strategy will be deployed differentially. All other things equal, Justices who are older and more ideologically extreme, compared with the expected replacement Justice, will receive more pampering. This will systematically alter both the mix of cases the Court hears and its substantive decisions to favor moneyed and politically hard-line interests.

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The Court’s Morality Play: The Punishment Lens, Sex, and Abortion

March 2024March 2024June Carbone* & Naomi Cahn†

This Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will continue to shape—the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, Medicaid expansion, or pretrial detention.

This Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish, even if that means redefining a sanction as not punitive. By making visible this framework, we offer the Court and the states a potential off-ramp from the continuation of an ugly and litigious future on abortion access. If the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way to do so would be to take seriously the statement that all it has to do is to return the issue to the states. In that case, the Court’s focus should be, as Justice Kavanaugh suggested in his concurrence, on the impermissibility of punishment that infringes on established rights, independent of a right to abortion, such as the right to travel, the First Amendment right to communicate accurate information about abortion availability, or doctors’ efforts to perform therapeutic abortions necessary to preserve a pregnant person’s health. The Court would not pass judgment on the permissibility of abortion, and it could affirm the propriety of state bans, but still strike down heavy-handed prosecutions and ill-defined prohibitions that impose undue penalties.

After Dobbs v. Jackson Women’s Health Organization, this Article is particularly important for three reasons. First, this Article examines the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. Second, a focus on punishment often illuminates the “dark side” of government action, justifying limits on such actions. Third, a focus on “punishment” often illustrates the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities. Understanding how the Court has used this elusive concept in the past may thus help shape the response to Dobbs.

INTRODUCTION

The concept of punishment is central to the Supreme Court’s jurisprudence on abortion—and, beyond abortion, to the expression of moral values in the public square. In Dobbs v. Jackson Women’s Health Organization, Justice Alito found “an unbroken tradition of prohibiting abortion on pain of criminal punishment” throughout the common law until the Court’s decision in Roe v. Wade in 1973.¹ He noted that “the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-quickening abortion was a crime”² and he traced these developments from the thirteenth century forward.³

The Dobbs opinion, like most criminal law discussions, assumes that the power to prohibit includes the power to punish violations of those prohibitions. And, indeed, criminal law scholars have produced an extensive literature on the justifications for the imposition of criminal sanctions and the constitutional limits on that imposition.⁴

What neither that vast literature nor the Dobbs opinion addresses, however, is the role of punishment in the evolution of the jurisprudence addressing the expression of public values, separate and apart from the existence of the laws prohibiting conduct. As this Article shows, when the Supreme Court has focused on the state’s justification for punishment independently from the underlying policy, it has often used the nature of punishment as a justification for striking down legislation—even when the Court concedes that the state purpose is otherwise legitimate.⁵ And it sometimes uses the declaration that onerous provisions are not “penalt[ies]” to uphold coercive legislation that, as a practical matter, limits access to what the Court otherwise recognizes as important rights.⁶ As these cases show, outside of the narrow context of whether a criminal prohibition justifies the imposition of a particular sentence,⁷ punishment has an ill-defined life of its own in Supreme Court jurisprudence.

This Article is the first to detail how the Supreme Court has viewed the concept of “punishment” as a justification for upholding or invalidating government acts in the context of issues involving contested values.⁸ While an intense debate raged at mid-century over whether the state should regulate morality, that debate generally assumed that if the state could regulate, it could also punish.⁹ This Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish. For example, the Court held that a state could discourage teen sex but not by encouraging pregnancy as the consequence¹⁰ or could adopt restrictive measures,¹¹ such as blanket refusals to fund medically necessary abortions, so long as the statute did not prohibit abortion or penalize those seeking one.¹²

This Article is particularly important following Dobbs for three reasons. First, it illustrates the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. For those who would like to extricate the Court from the conflicts Dobbs has inflamed, limiting punishment, for example, of those exercising a constitutionally protected right to travel, offers a potential off ramp.

Second, a focus on punishment often illuminates the “dark side” of government action. The opinion in Griswold v. Connecticut placed great weight on the intrusiveness of policing the use of contraceptives in the marital bedroom.¹³ The ugliness of imposing punishment may similarly become a focal point for organization in response to the patchwork of state laws after Dobbs.¹⁴

Third, a focus on “punishment” is often used to illustrate the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities.¹⁵ Abortion bans may aggravate race and class-based differences,¹⁶ prompting greater recognition of the rights of the pregnant to obtain the medical care needed to safeguard their health.¹⁷ Understanding how the Court has used this elusive concept in the past can thus help shape the response to Dobbs.

The Supreme Court’s conception of “punishment” underlying these considerations is slippery, perhaps intentionally so.¹⁸ The Court uses the concept at both an expressive level, reinforcing public norms, and a practical level, specifying the consequences for the violation of government mandates, both civil and criminal. Most critically for this Article, it provides the Court with a way to shape emerging norms in the context of public unease.

After describing the multidisciplinary literature on punishment’s multiple roles, we examine the way that the Court has deployed punishment as a rationale for invalidating government action, particularly in the context of cases involving sexual morality. Eisenstadt v. Baird, which stuck down bans on the sale of contraceptives to single women, provides a classic case: the Court simultaneously “conceded” that “the State could . . . regard the problems of extramarital and premarital sexual relations as ‘(e)vils’ ”¹⁹ but still held that this could not be the purpose of the Massachusetts legislation because it “would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication . . . .”²⁰ The irrationality of the punishment, not the permissibility of unmarried sex, provided the basis for the decision—and implicitly for the limitation of state power to regulate sexual morality.

We then explore how the Court has used the determination of what is a punishment to affirm state decision-making power in a federal system. The question of when the state is inflicting a punishment as opposed to imposing a reasonable condition or proceeding on appropriate administrative grounds arises in contexts ranging from welfare “home visits” to detention to Medicaid expansion, with the Court using the punishment lens to sidestep the substantive bases for these decisions.²¹

Finally, this Article considers cases that directly engage the relationship between punishment and the underlying values debate. Lawrence v. Texas, which invalidated Texas’s same-sex sodomy statute, provides the most striking example. Justice Kennedy’s majority opinion did not just strike down the criminalization of the sexual conduct.²² It affirmed the dignity and worth of the expression of intimacy in the case. Justice Scalia’s dissent, by contrast, saw punishment as the point, with both the majority and dissent agreeing that the values debate was central to the discussion.²³

This Article observes that the “punishment lens” provides a powerful tool for shaping the evolution of public values without enmeshing the Court in the underlying values debate. We consider whether the punishment lens can be successful in two ways: guiding the evolution of public values without triggering a backlash that further entrenches polarized opposition²⁴ or, failing that, reaching decisions in controversial cases that do not undermine the Court’s own legitimacy and authority.²⁵ By this standard, Eisenstadt v. Baird, which used the punishment lens to avoid the underlying values questions while striking down barriers to contraceptive access, and Lawrence v. Texas, which instead of relying on the punishment lens directly engaged the values questions, both succeeded in resolving issues in ways that helped move public opinion and lock in legal conclusions that remain embedded in American law. Whether applying the punishment lens to abortion can enjoy similar success remains to be seen, but this Article concludes by outlining the possibilities a focus on punishment can offer.

I. PUNISHMENT AND THE RULE OF LAW

The role of state-administered punishment is much studied—and much contested. Existing literature addresses the questions of what might justify the ability of the state to inflict intentionally burdensome treatment on its citizens,²⁶ what purposes such punishment should serve,²⁷ and what constitutes appropriate punishment.²⁸ As this scholarship establishes, law enforcement—and punishment of egregious crimes—is essential to a state’s legitimacy. Without punishment of criminal acts, a state cannot govern—and command either the support of its constituents or deference from the international order.²⁹ This literature, however, in its most idealized form, tends to assume a straightforward relationship between crime and punishment: the state prohibits certain acts, imposes prescribed penalties for the violation of the law, and administers the penalties in accordance with principles of procedural and substantive justice, emphasizing due process rights for the accused and fairness defined in terms of proportionality between the crime and the punishment.³⁰

This Section goes beyond the conventional analysis of criminal punishment to explore the expressive role that punishment serves. It shows that the judicial oversight of punishment serves four roles that pose difficult challenges in the face of contested or changing values: establishing shared societal values, maintaining or dismantling social hierarchies, mediating disputes over the authority of governmental actors to impose punishment, and channeling the individual desire for vengeance into state-approved channels.

First, the administration of punishment defines and reinforces societal values, often in symbolic ways. For example, with the recognition that smoking caused cancer and other health risks,³¹ the perceived acceptability of smoking changed.³² In the United States, the state did not respond by prohibiting smoking. Instead, government entities gradually limited the places where smoking was permitted, first, creating “no smoking” areas and ultimately banning smoking in restaurants, offices, and other places.³³ Over time, enforcement of these rules—and the imposition of sanctions on violators—did not just shift norms of politeness; they expressed moral disapproval of smoking as undesirable and deviant.³⁴ In 1993, the Supreme Court of the United States embraced the shift in attitudes in a decision that held placing a nonsmoking prison inmate in a cell with a five-pack-a-day smoker could constitute constitutionally impermissible “cruel and unusual punishment.”³⁵ In so ruling, the Court did not limit the word “punishment” to the prescribed penalties for a criminal act.³⁶ Instead, its finding of “cruel and unusual punishment” reflected and reinforced the changed social meaning of smoking from an acceptable activity to one that violated evolving “standards of decency,”³⁷ and concluded that violating this new moral sensibility could constitute “punishment” within the meaning of the Constitution. The act of placing a nonsmoker with a smoker thus became punishment because of the changed moral status of smoking.

Second, legal scholars have argued that beyond merely maintaining order, much of the power of state-administered punishment comes from this expression of “moral condemnation”³⁸ and its role in establishing social hierarchies within a society. In accordance with this analysis, moral condemnation does not just declare particular conduct to be illegal; it establishes and reinforces social order and social standing in a society.³⁹ Criminal acts threaten to upend the social order, as the person committing the crime asserts the right to defy established law and norms. Imposing punishment that carries moral condemnation with it restores the moral order,⁴⁰ affirming the victim’s superior status to that of the violator.⁴¹ Punishment can thus signal that “the community values the victim”⁴² while the failure to punish can indicate indifference, or even disdain, toward the victim.⁴³ Accordingly, both imposing punishment and failing to punish send important messages about what a society values. State-administered punishment can thus establish and reinforce norms in ways that contribute to social cohesion,⁴⁴ cohesion operating at the group as well as the individual level.⁴⁵ Disturbingly, the imposition of punishment can breed cohesion even if there is no crime;⁴⁶ nonetheless, the state reaffirms its legitimacy and authority when it punishes in the name of a value or ideal, rather than simply because it can.⁴⁷

The role of punishment in establishing social hierarchies, particularly when it operates at a group-based level, contributes to the dark side of punishment.⁴⁸ Brain imaging studies⁴⁹ show that the act of punishing engages the part of the brain that produces feelings of reward—the same area of the brain involved in drug addiction.⁵⁰ Individuals may thus derive pleasure from imposing punishment on others even when imposing punishment makes the punisher worse off.⁵¹

This psychological dimension corresponds to some descriptions of the retributivist purpose of punishment. Nietzsche argues that cruelty—and the satisfaction some derive from it—is the point of punishment.⁵² Even Oliver Wendell Holmes agreed that at least in some cases, punishment “is inflicted for the very purpose of causing pain” and “one of its objects is to gratify the desire for vengeance.”⁵³ And the anger and moral outrage that fuels demand for punishment can be manipulated.⁵⁴ Research has tantalizingly suggested that the act of punishment itself reinforces perception of harm.⁵⁵ Cultural cognition studies further show that people associate behavior contrary to their moral norms with socially detrimental consequences.⁵⁶

Precisely because the administration of punishment reinforces social standing at both the individual and the group level, it has implications that go beyond the punishment administered to any particular individuals. The decisions about which punishments to implement (such as firing an employee who refuses to be vaccinated or imposing work requirements as a condition of eligibility for state subsidized health insurance benefits) can create group-based winners and losers, elevating the status of one group at the expense of another.⁵⁷ Yet, denying the legitimacy of such demands for punishment—or imposing them too harshly—can also undermine respect for law.⁵⁸

This leads to the third role of judicial oversight of punishment: mediating conflicts that involve the authority of different governmental actors to impose punishment. In the United States, for example, the Supreme Court has overseen evolving conflicts between the states and the federal government in the administration of family law. The U.S. Constitution has historically been viewed as entrusting family law to the states,⁵⁹ but the Supreme Court has selectively intervened, at times to enhance or restrain state authority to impose punishment. In Stanley v. Illinois,⁶⁰ for example, the Supreme Court held that Illinois could not treat Peter Stanley as an unfit parent⁶¹—and thus deprive him of standing to seek the custody of his children after their mother’s death—solely because he had not married the mother.⁶² The Court intervened to limit the power of the state to punish unmarried fathers, at a time when attitudes were changing toward unmarried relationships.

Finally, the courts have historically overseen punishment in order to channel vengeance into socially constructive venues. The failure to punish perceived wrongs may persuade wronged individuals or groups to “take the law into their own hands” or to impose punishments out of proportion to the wrongful act.⁶³ The courts, in contrast, are supposed to act “judiciously” in administering punishment in a neutral manner, not just on behalf of the wronged individual, but because the assertion of the moral values of the social order can contribute to a sense of social order and cohesion.⁶⁴

The challenge of serving these four roles increases as social norms change.⁶⁵ The tension between maintaining order and imposing destabilizing punishments is particularly difficult if some social groups reject the norms, while others respond to the increasing defiance of the first group by calling for greater punishment as violations increase.⁶⁶ The imposition of punishment thus involves an “ever-shifting relationship between a regime and a given population that makes up the most essential element in any political order.”⁶⁷

These four roles make the administration of punishment central to the rule of law. They are also evident as a longstanding aspect of Supreme Court jurisprudence. Yet, managing the tensions between these objectives can undermine as well as maintain social cohesion. Congress and various state legislatures, for example, have attempted to shift norms surrounding intimate relationships by changing the laws governing sexual assault to make date rape easier to prosecute.⁶⁸ Imposing more serious penalties, however, may make judges and juries more reluctant to convict—and failures to impose punishment can undermine, in turn, the efforts to shift norms and also lead victims to feel even more isolated and aggrieved.⁶⁹ Expressing moral condemnation while keeping punishments commensurate with the perceived seriousness of the offenses thus requires walking a tightrope, one that sways with changing public sensibilities. Abortion, perhaps as much as if not more than any other issue, involves “irreconcilable disagreement” that challenges the legitimacy of the judicial system itself. The issues of punishment in the abortion context will test whether the judiciary generally, and the Supreme Court in particular, retain any capacity for guiding the recreation of shared social values.⁷⁰

II. SEX AND PUNISHMENT: RECOGNIZING REPRODUCTIVE RIGHTS

At the time Roe v. Wade was decided in 1973, the Supreme Court was carefully navigating a revolution in sexual mores.⁷¹ Sexual morality presents a classic case for the expressive role of punishment,⁷² with punishment serving to reinforce what are seen as consensus-based moral values broadly shared by the public.⁷³ Enforcing such norms also involves, however, punishment of private consensual conduct.

This Part shows how the Supreme Court focused on the acceptability of punishment as a rationale for state action rather than on the changing norms themselves. It did so through a series of cases that addressed contraception, nonmarital children’s legitimacy status, welfare benefits, parentage—and ultimately abortion—though the lens of punishment for sexual conduct. Within this new jurisprudence, the Court carved out a right to privacy that did not address the propriety of intimate conduct, but rather evaluated the permissibility of state action designed to shape private conduct.

A. Contraception and the Propriety of Pregnancy as Punishment for Sex

Starting with Griswold v. Connecticut⁷⁴ in 1965, the Supreme Court began to strike down legislation that regulated sexuality in ways that the Court deemed needlessly punitive. In doing so, the Court never waged a frontal assault on the moral order that channeled sexuality into marriage.⁷⁵ Instead, the Court examined the rationales underlying the laws and the consequences of imposing punishment.

Griswold addressed the constitutionality of a law that forbade the use of contraception. Anthony Comstock had spearheaded prohibition of contraceptives in the nineteenth century, convinced that they “facilitate[d] immoral conduct” because they “reduce[d] the risk that individuals who engage[d] in premarital sex, extramarital sex, or prostitution [would] suffer the consequences of venereal disease or unwanted pregnancy.”⁷⁶ Comstock persuaded Congress to outlaw “print and pictorial erotica, contraceptives, abortifacients, information about contraception or abortion, sexual implements and toys, and advertisements” in 1873⁷⁷ and the states adopted their own “Little Comstock laws” thereafter.⁷⁸ Connecticut’s statute, adopted in 1879,⁷⁹ was one of the most restrictive, banning not just the advertising and sale of contraceptives, but also the use of contraception.⁸⁰

The Court framed the case as one against defendants who “gave information, instruction, and medical advice to married persons as to the means of preventing conception.”⁸¹ In resolving the matter, the Court conceptualized a right to privacy, a right that justified looking the other way at sexual conduct. The Court wrote that “[w]e deal with a right of privacy older than the Bill of Rights older than our political parties, older than our school system.” ⁸² The Court did not mention married couples’ efforts to limit the number of children they had directly, although it did refer to the marital relationship as “intimate to the degree of being sacred” and suggested that enforcing a ban on contraceptive use would have “a maximum destructive impact upon [the marital] relationship.”⁸³ By contrast, the Court acknowledged the validity of the state’s purported rationale for the regulation: “the discouraging of extra-marital relations.”⁸⁴ While the Court stated that this rationale “is admittedly a legitimate subject of state concern,”⁸⁵ banning contraceptive use by married couples was simply too far removed from the purported subject of the statute to pass constitutional muster.⁸⁶ The Court suggested that the state could regulate the manufacture or sale of contraceptives but not their use within marital unions.⁸⁷ In short, the Court focused on the ugliness of enforcement⁸⁸ rather than on the permissibility of the underlying conduct—the use of contraception.⁸⁹

Connecticut did not often enforce its ban on married couples’ contraceptive use, but the fact that the law was on the books effectively limited the ability to use contraception to those with access to doctors and pharmacists.⁹⁰ While the Griswold decision did not mention the issue,⁹¹ a major reason for challenging the ban on contraception was the unequal nature of contraceptive access.⁹² By striking down criminal penalties for contraceptive sales, the Court effectively allowed doctors and clinics to make contraception more broadly available. The implicit principle at the core of this decision was that, while the state could steer sexuality into marriage, it could no longer seek to ensure that pregnancy be the unavoidable consequence of sexual relationships.

Eisenstadt v. Baird,⁹³ decided in 1972, expanded the principle—that pregnancy was an unreasonable punishment—beyond marriage. Eisenstadt struck down a Massachusetts statute that prohibited supplying contraception to single, as opposed to married, individuals. As in its decision in Griswold, the Court “conceded” that “the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as ‘(e)vils.’ ”⁹⁴ Nonetheless, it concluded that this could not be the purpose of the Massachusetts legislation because it “would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication.”⁹⁵ The Court acknowledged, as it did in Griswold, that notwithstanding the law, contraceptives are widely available, and thus “the rationality of this justification is dubious.”⁹⁶

By 1977, the Supreme Court was willing to say that the state could not prescribe pregnancy as the punishment for sex even where the state had a clear interest in discouraging sex between minors. In striking down a state law that prohibited selling contraceptives to minors under the age of sixteen, the Court noted the state interest in regulating the “morality of minors” in its efforts to promote “the State’s policy against promiscuous sexual intercourse among the young.”⁹⁷ Again, however, the Court accepted the legitimacy of the state interest, but rejected the connection between such a state interest and the prohibition on sales of contraceptives to minors. The Court observed that, “with or without access to contraceptives, the incidence of sexual activity among minors is high, and the consequences of such activity are frequently devastating,” but observed that there was little evidence that banning contraception had much impact.⁹⁸ The Court thus concluded that the state could not promote an otherwise legitimate objective—discouraging “promiscuous sexual intercourse among the young”—by making pregnancy the punishment for sex and criminalizing efforts to avoid the consequences.⁹⁹ And it emphasized that the justification for banning contraceptive sales became that much weaker as the evidence mounted that the laws on the books did not have the desired effect. It thus concluded that the “punishment” (pregnancy) did not serve the interests of either deterrence (teens with still have sex) or an appropriate desert (a child) for a wrongful act.

B. Public Recognition and the Removal of the Scarlet Letter from Children

The Supreme Court relied on similar reasoning in dismantling the distinctions between “legitimate” and “illegitimate” children, with the Court ultimately concluding that the states could not seek to channel childbearing into marriage by punishing children for their parents’ conduct. In the “seminal” case of Levy v. Louisiana,¹⁰⁰ the Court considered a Louisiana law that restricted the ability to bring a tort action for the wrongful death of a parent to “legitimate children.”¹⁰¹ As a result, an unmarried mother’s five children, who lived with her, and whom she raised on her own earnings, had no right to sue for their mother’s allegedly wrongful death. The Court, in striking down the statute in a brief opinion, observed that the Court could imagine no reason “why, in terms of ‘equal protection,’ should the tortfeasors go free merely because the child is illegitimate?”¹⁰² The Court reasoned that the circumstances of the birth had “no relation to the nature of the wrong allegedly inflicted on the mother;” the children, “though illegitimate, were dependent on her.”¹⁰³ The Court even recounted how the mother in the Levy case supported her children by working as a domestic servant, “taking them to church every Sunday and enrolling them, at her own expense, in a parochial school.”¹⁰⁴ In this opinion, the Court identified no countervailing state interest; the children were deprived of the right to sue for the loss of their mother simply because of the circumstances of their birth.

The Supreme Court in Levy did not mention the issue of race, but amicus briefs filed in the case emphasized that, particularly in Louisiana, the distinctions between marital and nonmarital children had a significant racial impact. Indeed, an amicus brief filed by Illinois law professor Harry Krause (and others) argued explicitly that the statute “discriminates on the basis of race.”¹⁰⁵ The brief maintained that the discrimination stemmed partly from the fact that “disproportionately more Negro children than white children are born out of wedlock,” and, partly from the fact that “a high percentage (70%) of white illegitimate children are adopted . . . whereas very few (3-5%) Negro illegitimates find adoptive parents.”¹⁰⁶ As a result, “95.8 percent of all persons affected by discrimination against illegitimates under the statute are Negroes.”¹⁰⁷ The brief concluded, “the classification of illegitimacy . . . is a euphemism for discrimination against Negroes.”¹⁰⁸

Louisiana denied that it sought to punish the children for immorality in sexual behavior, but it nonetheless maintained that it sought to encourage marriage.¹⁰⁹ And the state asserted: “If the community grants almost as much respect for non-marriage as for marriage, illegitimacy increases” and that “illegitimate daughters tend to err in the manner of their illegitimate mothers, producing more illegitimate children.”¹¹⁰ In short, Louisiana did argue that it was necessary to punish the children to deter their parents, if not quite in so many words. And the children who would be punished as a result were overwhelmingly Black.¹¹¹ Louisiana’s efforts to punish nonmarital births thus reinforced a racial as well as moral line, though the majority opinion for the Court did not directly address the racial issue.

In subsequent cases, the Court made the role of punishment even more explicit. In 1972, the Court reaffirmed Levy in striking down a Louisiana statute that defined “child” so that only marital children were eligible for insurance benefits resulting from their father’s death.¹¹² Justice Powell’s majority opinion held that the “status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage,” but still concluded that imposing “this condemnation on the head of an infant is illogical and unjust.”¹¹³ Powell concluded that the distinction between marital and nonmarital children was not justified by any state interest.¹¹⁴

In 1977, the Court revisited the issue of inheritance,¹¹⁵ invalidating an Illinois statute that permitted nonmarital children to inherit only from their mothers, not their fathers.¹¹⁶ In a 5-4 decision, Justice Powell reiterated that “visiting this condemnation on the head of an infant is illogical and unjust.”¹¹⁷ He emphasized that, while the parents’ behavior might have been immoral, that was not the fault—nor the responsibility—of the children. The opposition to the punishment of children commanded a majority of an even more conservative Court than the Warren Court that had initially struck down such classification.¹¹⁸

C. The Right to Abortion: Part I

The Supreme Court’s 1973 decision in Roe v. Wade situated the case within the punishment lens the Court had constructed to deal with reproductive rights more generally. The case never squarely fit there, however, because abortion did not just involve the regulation of sexual behavior between consenting partners; it also raised issues about the involvement of the medical profession and the status of the fetus. Nonetheless, the Court framed the decision as a right centered on the irrationality of the state prescription of childbirth as a way to prevent illicit sex and a jurisprudence conscious of the consequences, intended and unintended, of regulating sexual morality. It thus treated laws banning abortion as imposing punishment—on the pregnant for incurring an unwanted pregnancy, on doctors for exercising medical judgment in treating patients, and on those who felt compelled to seek illegal abortions in unsafe circumstances.

Among the telling aspects of this analysis is the way the Court articulated the state interests at stake. The Court identified the first such interest as one based on “a Victorian social concern to discourage illicit sexual conduct.”¹¹⁹ Curiously, though, the Court acknowledged that Texas did not articulate that justification in Roe, and it appeared that courts and commentators had not actually taken the argument seriously.¹²⁰ On the other hand, however, the Comstock laws, which banned abortifacients along with pornography and contraception, treated the regulation of sexual morality as of a piece with abortion.¹²¹ The Court thought the connection between an abortion ban and the regulation of morality sufficiently important to mention—and dismiss.

Second, the Court acknowledged that forcing a woman to carry an unwanted pregnancy to term is cruel.¹²² It referred to the burdens of pregnancy and childbirth, including the possibility that childbirth “may force upon the woman a distressful life and future,” her “[m]ental and physical health may be taxed by child care,” and the unwanted child may cause “distress, for all concerned.”¹²³ The opinion acknowledged the hardship involved in bringing a child into a family that could not care for the child, and the potential for stigmatizing a nonmarital mother.¹²⁴ The Court accordingly echoed earlier cases treating avoidable pregnancy and childbirth an inappropriate way to advance state purposes because of the burden imposed.

Third, the Court was aware that the states often brought criminal actions against doctors.¹²⁵ One of the parties in Roe, Dr. James Hubert Hallford, allegedly had faced prosecutions for violations of the Texas abortion statutes.¹²⁶ Hallford maintained that the applicable statutes were unconstitutionally vague because he could not determine whether his patients’ situations would qualify as exceptions to the abortion ban,¹²⁷ so he faced punishment for exercising a good faith medical judgment about his patients’ therapeutic needs. Justice Blackmun’s initial draft proposed striking down Texas’s anti-abortion law as unconstitutional only on the grounds that it was void for vagueness.¹²⁸ The punishment that doctors faced in making delicate judgements was clearly a factor in the subsequent Roe decision and in its declaration that abortion decisions should be left to “the woman and her responsible physician.”¹²⁹

Fourth, the Court dismissed state assertions that banning abortion was necessary to protect women’s health, observing that mortality rates during the first trimester of pregnancy “appear to be as low as or lower than the rates for normal childbirth” in contrast with the “prevalence of high mortality rates at illegal ‘abortion mills.’ ”¹³⁰ While less explicit than the Court’s acknowledgment of the burdens of pregnancy, the Court recognized that resort to unsafe abortions was a punitive consequence of the prohibition of legal abortions.

In the background of the case, states’ law on abortion had begun to change, with some states repealing their anti-abortion statutes entirely and others reforming their law to expand the availability of therapeutic abortions.¹³¹ A practical consequence was that, as with contraception, the availability of abortion, particularly safe abortion, differed significantly by race, location, and class.¹³² Partly as a result, women of color were substantially more likely—by some estimates twelve times more likely¹³³—to die from illegal abortion than white women.¹³⁴

In limiting the state ability to restrict abortion, the Court treated these restrictions as imposing impermissible penalties on those seeking abortion. The penalties were not so much the criminal sanctions themselves; these were rarely imposed on the individuals who secured abortions.¹³⁵ Instead, states banning abortion were making childbirth the consequence of unprotected sex—and the risk of death the price of seeking an illegal abortion. The Court found that unacceptable. And while the Court recognized the state interest in protecting fetal life, it balanced that interest against the woman’s interest in deciding whether to give birth. Fetal life, as an interest separated from the sexuality (and women’s bodies) that produced it, would become more prominent as an issue only after Roe was decided.¹³⁶

In these cases, the Supreme Court helped oversee a shift in sexual mores during a period where nonmarital sexuality was becoming more common and accepted. In focusing on the acceptability of the punishment, the Court did not endorse the changes directly; instead, it addressed the rationality of widely violated restrictions that imposed serious, arbitrary and discriminatory harms. The Court’s use of the term “punishment” was not, however, consistent or the subject of a coherent jurisprudence. Sometimes, it referred to the state rationales (deterring sex by limiting access to contraception, making pregnancy the “punishment” for fornication), sometimes it referred to the intrusive nature of criminal enforcement (searching the marital bedroom) rather than the imposition of criminal sanctions, and sometimes it considered the collateral consequences of government action (the stigma and limitations associated with nonmarital births). In the process, however, the Court used the punishment lens to oversee a wholesale effort to strike down what it saw as the outdated remnants of “Victorian” sexual mores without disavowing the legitimacy of state efforts to channel sexuality into marriage.

III. PUNISHING PARENTS

The era that produced Roe involved overlapping interests reducing the support for a punitive approach to sexual morality: a change in sexual norms, a remaking of women’s roles, and more urgent calls for racial equality.¹³⁷ In addition, the parties were less ideologically polarized, with greater elite consensus.¹³⁸

Nonetheless, by the mid-seventies, another jurisprudential revolution was taking place: one embedding a neoliberal¹³⁹ view of the state into Supreme Court jurisprudence. The Warren Court had been sympathetic to calls not just for racial equality, but also for greater economic rights.¹⁴⁰ These claims often took the form of calls to treat government benefits as entitlements, with more equal access to the benefits and more obstacles to denying eligibility. The neoliberal era taking hold by the late seventies rejected these claims. The Court embedded this perspective in the same way it had overseen the change in sexual mores: by using the punishment lens to resolve issues that involved farther reaching clashes in values. The Court did so by denying the very fact of punishment. It concluded that if a given regulation did not penalize the individuals subject to it for protected activity, no constitutional issue arose at all. In the process, the Court upheld regulations that supervised poor women’s sexuality and denied access to abortion funding.

This Section focuses on how the punishment lens applies in more varied civil settings, tracing the evolution of the Court’s treatment of government benefits. The first part of this Section describes how the Court deemed public benefit requirements non-punitive in order to uphold limitations on government benefits under the Aid to Families with Dependent Children (AFDC) and Medicaid programs; the second part of the Section shows how the punishment lens applies outside of the sexual-morality context, analyzing how it has been used to limit access to benefits under the Affordable Care Act.

A. Welfare Benefits and the Rejection of Positive Rights

In the 1960s, the Supreme Court addressed the relationship between sexuality and eligibility for government benefits during a period in which the Court was enhancing access to government benefits more generally.¹⁴¹ The original Aid for Dependent Children (ADC) program was adopted in the 1930s as part of the New Deal’s far-reaching social legislation. The United States, unlike many European nations, had never adopted a universal system of family allowances to support childrearing but instead had a variety of state programs designed to provide widows’ pensions to support children who would otherwise land in orphanages because their mothers could not support them.¹⁴² In the 1930s, Congress nationalized these efforts, providing federal funding for a state-run system to compensate for the loss of a male breadwinner.¹⁴³ Congress limited aid to children who had “been deprived of parental support or care by reasons of the death, continued absence from the home, or physical or mental incapacity of a parent” and allowed the states to impose additional eligibility standards, such as “moral character” requirements that excluded the children of unmarried parents from the program.¹⁴⁴

As early as the 1940s, critics argued that the moral requirements “were habitually used to disguise systematic racial discrimination; and that they senselessly punished impoverished children on the basis of their mothers’ behavior.”¹⁴⁵ The federal government sought to discourage the moral requirements.¹⁴⁶ By the late 1960s, the states had shifted from outright prohibition of benefits to “man in the house rules” that deemed the income of a man who cohabited with a welfare recipient to be available to the family, thereby affecting the family’s qualification for public welfare.¹⁴⁷ These regulations were understood to serve the dual purpose of punishing African Americans and privatizing dependency by withholding public benefits from nonmarital families.¹⁴⁸

In King v. Smith, the Supreme Court examined the punitive nature of these requirements. The Court sidestepped the constitutional issues in the case, striking down the Alabama regulation at issue on statutory grounds, noting that federal law precluded states from denying public welfare to children because “of their mothers’ alleged immorality or to discourage illegitimate births.”¹⁴⁹ The Court concluded that “Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC.”¹⁵⁰ Justice Douglas’s concurrence, however, would have reached the constitutional issue. He saw Alabama officials as discriminating against children on the basis of illegitimacy and therefore acting at odds with the ruling in Levy v. Louisiana, decided during the same term.¹⁵¹ He wrote that “the Alabama regulation is aimed at punishing mothers who have nonmarital sexual relations.”¹⁵² In administering the provisions, the “economic need of the children, their age, their other means of support, are all irrelevant. The standard is the so-called immorality of the mother.”¹⁵³ He viewed that standard—and the attendant punishment—inflicted on the mother to be constitutionally impermissible.¹⁵⁴

By the time the Supreme Court decided the case in 1968, the nature of the AFDC program had changed. While 43% of the ADC caseload in 1937 consisted of widows, only 7% were in 1961.¹⁵⁵ And as documented in an amicus brief in Levy v. Louisiana, decided the same term, the statute was both “overt discrimination on the basis of the criterion of illegitimacy,” and “covertly discriminate[d] on the basis of race.”¹⁵⁶ The Court almost certainly saw the two cases as linked, although only Justice Douglas’s concurrence in King made the connection directly.¹⁵⁷

In deciding King v. Smith, the majority opinion, however, dealt with these issues only obliquely. Instead, it focused on the irrationality of the punishment imposed—the denial of benefits in a program intended to help children that would disproportionately disadvantage the very children the program was intended to help. The Court did not endorse a right to nonmarital sexuality.¹⁵⁸ It did not discuss the discriminatory motive and effect underlying the regulations.¹⁵⁹ It did not recognize an affirmative “right” to federal benefits¹⁶⁰ nor a right to privacy for benefit recipients.¹⁶¹ Instead, it focused solely on the legitimacy of the punishment, concluding that children could not be deprived of benefits in an effort to change their mothers’ conduct. It treated the man-in-the-house rules not as a rational effort to determine the resources available to the family, but as a subterfuge to continue morals regulation in the face of federal disapproval.¹⁶² The case was thus of a piece with the contraception and legitimacy cases in challenging irrational punishments: punishments that were irrational because once they failed to deter nonmarital sexuality in an era of changing mores, their application became arbitrary and discriminatory.

In subsequent cases, however, the Supreme Court upheld provisions that burdened the poor and their children by deeming such provisions non-punitive. Thus, in Wyman v. James, the Court found constitutional a New York statute mandating home visits,¹⁶³ that were in line with federal law’s requirements that aid be provided only after consideration of the family’s resources and only to children who were not being neglected.¹⁶⁴ The “visits” could prove embarrassing in front of children and guests, and could serve to police sexual relationships.¹⁶⁵ The Court refused to find that mandated visits were a penalty at all, terming them instead a condition of benefit eligibility¹⁶⁶ and not a substantive, much less punitive, standard tying loss of benefits to impermissible or arbitrary considerations.¹⁶⁷

The dissent objected on the grounds that welfare rights should be seen as entitlements.¹⁶⁸ While both the majority and the dissent focused on the status of welfare benefits, Justice Blackmun’s majority opinion used the conclusion that the “conditions” on receipt of benefits were not penalties to lock in a neoliberal view of government action: because there is no right to benefits, the state could impose whatever standards it chooses as preconditions for eligibility, and those conditions never become punishment subject to constitutional scrutiny.¹⁶⁹

B. Punishing Sex

In subsequent cases, the Court’s characterization of a particular government action as non-punitive allowed it to uphold conditions that were challenged as discriminatory, cruel, or unjust. The results were particularly striking when the issue turned to abortion. Legislators who opposed abortion and who could not overturn Roe v. Wade directly sought to express their disapproval of abortion by prohibiting the use of public funds to pay for abortions, while permitting those funds to be used for pregnancy and childbirth.¹⁷⁰ Were these bans penalization of a constitutionally protected right—the right to elect abortion to terminate a pregnancy—or were they simply the exercise of legislative policy preferences to allocate public funds to support some activities and not others? The Supreme Court used the punishment lens to resolve the issue. Since individuals enjoyed no positive right to health care—or to abortion funding—the denial of funding could not constitute a penalty and thus had no constitutional implications.¹⁷¹

An initial case upheld Connecticut regulations limiting public funding of abortions to medically necessary abortions during the first three months of pregnancy.¹⁷² Justice Powell wrote for the 6-3 majority that the Constitution did not impose any obligation on the states to pay pregnancy-related medical expenses of low-income women or any other medical expense.¹⁷³ He noted that the Court had not found in previous cases that wealth was a suspect class¹⁷⁴ and that Connecticut was accordingly free to subsidize childbirth and not abortion as an expression of state policy designed to encourage the former.¹⁷⁵

By 1980, Congress had gone further, adopting the Hyde Amendment, a prohibition on the use of federal funds to reimburse the cost of abortions under the Medicaid program, including abortions that were the result of rape or incest or medically indicated.¹⁷⁶ In a 5-4 opinion later that year, the Supreme Court upheld the constitutionality of the Amendment. The majority opinion treated the issue as a classic one of negative liberty, explaining that the freedom to choose to have an abortion, even a medically necessary one, does not carry with it a government obligation to fund the abortion.¹⁷⁷ It then explained that a woman’s poverty was “the product not of governmental restrictions on access to abortions, but rather of her indigency.”¹⁷⁸ Accordingly, the Court concluded that the failure to pay for abortions was not punishment and thus not subject to constitutional review.

The four dissenters viewed the Hyde Amendment as punitive and cruel. Justice Blackmun made the point that the legislators championing the Hyde Amendment cynically sought to express their own views on the morality of abortion by imposing those views “only upon that segment of our society which, because of its position of political powerlessness, is least able to defend its privacy rights from the encroachments of state-mandated morality.”¹⁷⁹ He would have accordingly subjected the legislation to more exacting judicial review.¹⁸⁰ Justice Stevens emphasized that “the Court expressly approves the exclusion of benefits in ‘instances where severe and long-lasting physical health damage to the mother’ is the predictable consequence of carrying the pregnancy to term” and, indeed, “even if abortion were the only lifesaving medical procedure available.”¹⁸¹ He concluded that the result “is tantamount to severe punishment” for wanting an abortion.¹⁸² Justice Marshall emphasized the racial impact of denying abortion funding and also noted that the Hyde Amendment resulted in “excess deaths.”¹⁸³

In Harris, the Court upheld the validity of an extraordinarily cynical statute. Congress, in effect, limited poor women’s abortion access because it could—it could allow expression of the anti-abortion sentiments of members of Congress at the expense of a relatively powerless group.¹⁸⁴ By declaring that forced birth due to the failure to secure funding for an abortion was not a punishment, the Court avoided addressing the question of whether it burdened a constitutional right.

In Wyman and Harris, neither the majority nor the dissenting opinions treated these cases as imposing punishment for sex, and the majority opinions rejected even the premise that the aid recipients had been punished for the exercise of constitutional rights (privacy in Wyman, abortion in Harris). The reasoning in the cases backtracked on the entitlement language that had been building in the welfare rights era, leading to the conclusion that if the benefits at issue were not entitlements, the failure to provide them could not be seen as punishment—effectively ending the discussion of whether the provisions at issue were unduly cruel or whether they reinforced class- or race-based social hierarchies.¹⁸⁵

C. The Punishment Lens Beyond Sex

The litigation over the Affordable Care Act (ACA)¹⁸⁶ involves the clash of values we have described in this Article and the use of the punishment lens to resolve some of the challenges. The ACA was the largest expansion of public largesse in a half century and therefore a direct challenge to neoliberal values. The legislation’s principle of universal health insurance coverage clashed with those who wished to limit government benefits altogether or to withhold them from those deemed unworthy, such as those who were not working, reinforcing class and racial hierarchies. In addition, by treating contraception as an integral part of women’s health care, the ACA conflicted with the views of some Christian employers who opposed contraception. The legislation thus involved, on a much larger scale, the clash of values underlying the characterization of government benefits in Wyman and Harris.

In the cases discussed in this Section, the Supreme Court returns to the issue of punishment, though without any more precise a definition of the concept. Instead, the Court repeatedly faced the question of whether the ACA provisions operated as a tax or a penalty, a condition or a penalty, and a provision of alternative means of compliance or a penalty, and used the characterization of the actions as penalty or not to resolve the cases.¹⁸⁷ The net effect for the ACA was a compromise: the ACA endured but on somewhat more neoliberal terms than the Obama Administration and the Congress that enacted the legislation might have intended.¹⁸⁸

The ACA, in attempting to provide universal health care access,¹⁸⁹ included a series of alternatives that were designed to balance the principles of expanded access, adequate funding, and reasonable private choice.¹⁹⁰ In National Federation of Independent Business v. Sebelius, the most prominent of the ACA cases,¹⁹¹ the Court addressed two issues that turned on the concept of a penalty. The first involved the “individual mandate,” which required an individual who did not otherwise receive health insurance through their employers or other state provisions, to purchase health insurance on state exchanges or pay what the legislation described as a “penalty” collected by the Internal Revenue Service with the filing of individual tax returns. The Court rejected the government’s claim that the commerce clause authorized the mandate,¹⁹² but upheld it instead as a “tax.”

The Court reasoned that under the ACA, “if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.”¹⁹³ The Government accordingly argued that the mandate could “be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.”¹⁹⁴ Under this theory, the legislation does not establish “a legal command to buy insurance,” just a trigger for owing taxes, like “buying gasoline or earning income.”¹⁹⁵ Therefore, the Court concluded that the ACA was within the Congressional tax power.

Critical to the Court’s reasoning was its decoupling of a requirement to buy insurance, which the Court concluded that Congress could not do, and a requirement to pay an amount, deemed by the Court a “tax,” intended to finance the program. In reaching this conclusion, the Court explained that “[i]n distinguishing penalties from taxes, this Court has explained that ‘if the concept of penalty means anything, it means punishment for an unlawful act or omission.’ ”¹⁹⁶ The ACA mandate was not a penalty (or punishment) because while the mandate sought to incentivize health insurance purchases, it did not make the failure to do so “unlawful.”¹⁹⁷ The fact that Congress sought to influence individual behavior did not matter, just as Congress’s efforts to encourage childbirth rather than abortion did not matter in Harris v. McRae; so long as the federal government did not outlaw the failure to buy insurance, the individual mandate was a tax, not a penalty (and not punishment for the failure to buy insurance). It was therefore constitutional.¹⁹⁸

The second issue the Court addressed was Medicaid expansion, which the Court again decided in terms of the acceptability of the Act’s “penalties.” Congress revised the existing Medicaid program, which is a federal-state partnership, to cover individuals within 138% of the poverty line, and to bring Medicaid coverage in line with the coverage health insurance policies offered on the exchanges.¹⁹⁹ Congress then gave the states a choice: accept federal funding in accordance with the new expanded Medicaid program or forego federal Medicaid funding.²⁰⁰ The majority in Sebelius objected that the “choice” was too coercive, effectively mandating state participation in the program.²⁰¹ It reasoned that while Congress could condition state eligibility for federal funding under a new program, it could not “penalize States that choose not to participate in that new program by taking away their existing Medicaid funding,”²⁰² describing the “inducement” in the Act as “a gun to the head.”²⁰³ Justice Ginsburg’s dissent objected that Congress was, as it had done in the past, just requiring states to comply with “conditions” imposed by Congress to receive Medicaid funding.²⁰⁴

The parallels between Sebelius and Wyman v. James are striking. The requirement that the states adopt Medicaid expansion in order to participate in the Medicaid program could have been described, as Justice Ginsburg wrote, as a condition for participation in a federally funded program. The Sebelius Court disagreed, finding that it penalized the states for the failure to agree to the program’s terms.²⁰⁵ The Court effectively treated the state’s existing funds as an entitlement the federal government could not threaten to take away in order to obtain the performance it sought. In Wyman, because welfare was not an entitlement, a welfare recipient’s failure to consent to intrusive home visits was not considered a penalty at all; it was labelled as “a condition of eligibility” to the continued receipt of benefits.²⁰⁶ The label—condition or penalty—resolved each case without engaging the substantive issue of whether the conditions themselves were reasonable or justified.

In Sebelius, the result cloaks the real issues underlying Medicaid expansion—skepticism about whether the poor merit medical benefits²⁰⁷ and opposition to the state role in meeting such needs.²⁰⁸ Indeed, the federal government picked up 100% of the initial costs associated with implementing the program, and 90% thereafter so that the financial burden on the states was relatively minimal²⁰⁹—and less than the state share of the pre-ACA Medicaid program²¹⁰ and arguably much less of a burden on the states than asking a welfare recipient to consent to frequent, unannounced, and intrusive home visits (or the uninsured to go without health care).²¹¹ What Sebelius did not address is why states opposed Medicaid expansion, given the substantial financial incentives in the ACA for the states to do so. Most commentators attribute the opposition to the states’ ideological opposition to government provision of health insurance, if not outright hostility to the poor people in their states.²¹² Some states continue to resist Medicaid expansion, despite widespread public support for it.²¹³ In effect, the Court, in the name of federalism, authorized the states to act with impunity in frustrating Congressional efforts to ensure accessible health insurance at the expense of people in their states who qualified for the benefits.

In a later ACA case,²¹⁴ the Supreme Court also used the concept of punishment to address the employer mandate, which gave businesses the choice of providing health insurance that met federal standards for their employees or contributing to the exchanges so that employees could purchase their own insurance.²¹⁵ Hobby Lobby, a closely held, for-profit corporation, provided health insurance for its employees, but refused to comply with federal requirements to cover certain forms of contraception, including the morning after pill, because, according to the company, they acted as an abortifacient.²¹⁶ In a 5-4 decision, the Court held that requiring a company to cover certain mandated health care benefits, such as the pills in question, violated the Religious Freedom Reformation Act.²¹⁷ The Court gave little regard to women’s loss of access to the contraceptives, holding that the federal government, if it chose, could provide them through “less restrictive means.”²¹⁸ In short, the Court held that it would be an unjustifiable penalty to compel corporate owners to comply with the terms of a neutral government program that benefitted their employees, if those terms conflicted with the owners’ religious beliefs.²¹⁹

The employer mandate was essentially the same as the individual mandate—it gave those affected, whether individuals or employers, a choice: meet the ACA requirements (individuals by purchasing insurance that met federal standards or employers by providing such insurance) or pay the mandated sums to the federal treasury, in each case less than the cost of the insurance. With respect to the individual mandate, the Court concluded that the payment was a tax on those without insurance and not a penalty because the federal government had not (and could not) compel the purchase of insurance. In the case of the employer mandate, the Court concluded that the required payments were, in effect, a penalty for Hobby Lobby’s desire to act on its religious beliefs, rather than a condition for participation in a program providing federal subsidies.

To be sure, the two cases do not arise under identical bodies of law. Sebelius addressed two distinct legal issues: Congressional power to enact the individual mandate under the Commerce Clause and the taxing power, and the limits of Congressional power under a federal system to incentivize state participation in a federal program. Hobby Lobby was decided in accordance with a third body of law, determining the religious rights of for-profit corporations. Yet, in each case, the Court’s framing of the law as punishment or not—that is, whether the intricate provisions of the ACA acted as sanctions designed to compel specific behavior—determined the outcome. And, in each of these cases, the Court upheld moral hierarchies: protection of religious employers at the expense of employees denied access to federal contraception benefits, protection of states disapproving of health care subsidies at the expense of their citizens who would benefit from such subsidies, and limits on the power of the federal government vis-à-vis other actors, including the states and privately-held businesses. ²²⁰

IV. RETURNING MORALITY TO THE PUBLIC SQUARE

In focusing on punishment, the Supreme Court oversaw a revolution in sexual mores without directly engaging the issue of what values should govern in the public square. The Court has also strengthened a neoliberal regime by simultaneously holding that imposing conditions on program beneficiaries does not constitute punishment while imposing conditions that require coverage constitutes a constitutionally unacceptable “penalty.” In relatively few of these cases did the Court, particularly in its majority opinions, directly engage the underlying values clash. The exception has come in the discussion of LGBT rights—and increasingly in the Court’s opinions on abortion. These exchanges pull back the curtain on the role of punishment in Supreme Court jurisprudence. In these cases, the argument for the losing parties, embraced by the dissents, maintain that punishment is the point—the necessary component to affirming the “right values” in the public square. In response, the Court, in a way it did not do so in the earlier cases, directly addresses the relationship between the status of those affected by punishment and the values they express by engaging in the prohibited activity.

A. LGBTQ+ Rights and the “Homosexual Agenda”

One of the clearest clash of values prior to Dobbs occurred in the Supreme Court’s decision in Lawrence v. Texas.²²¹ In Bowers v. Hardwick,²²² the Court had considered whether there was a fundamental right to engage in same-sex sodomy, a formulation that the Court repeated in Dobbs. In both cases, the Court referred to the long history of criminalizing the conduct at issue,²²³ with those arguing for the constitutionality of such criminal penalties maintaining that the history of punishment reflected disapproval of the underlying conduct and provided evidence of the continuing legitimacy of such sanctions.²²⁴

Lawrence, which involved a criminal prosecution for same-sex sodomy, directly involved the issue of punishment. The two men in the case were arrested in a private residence when the police arrived to investigate a purported weapons disturbance.²²⁵ In his opinion for the majority, Justice Kennedy’s opinion had two levels of analysis. Like the Griswold line of cases, it affirmed a right to privacy, observing that “[t]he statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”²²⁶ The majority opinion then emphasized that the Texas statute being enforced in the case was not just about prohibiting a “particular sexual act”;²²⁷ it involved intimate conduct as part of “a personal bond that is more enduring.”²²⁸ The opinion thus concluded that such punishment was not just constitutionally impermissible²²⁹ but that the behavior at issue had societal value.²³⁰

Justice O’Connor, in her concurrence in Lawrence, did not go as far as the majority. Instead, in a manner reminiscent of the earlier cases on contraception, she limited her analysis to a punishment lens, finding that Texas could not claim a legitimate interest. She thus rejected out of hand the asserted state interest in the case, which she described as nothing more than the “moral disapproval of an excluded group.”²³¹ For O’Connor, the impermissibility of the punishment—and its discriminatory character—were enough to strike down the statute without necessarily requiring an affirmation of the value of same-sex intimacy.

Writing in dissent, Justice Scalia made clear that he thought that moral disapproval of same-sex sexuality was exactly what the case should have been about. He denounced what he called the “homosexual agenda,” which he defined as “the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”²³² He cast his dissent explicitly in terms of maintaining a moral hierarchy based on that opprobrium.²³³

The opinions in Lawrence thus frame, perhaps better than any of the other cases, the permissibility of punishment and the Court’s use of a punishment lens. They involve a clash between the ability to affirm moral values in the public square versus the preservation of private homes from the intrusion of the state. They also involve the use of the declaration of values to define those to be “protected,” in Scalia’s words, from those to be “excluded,” in O’Connor’s terms, thus reaffirming societal hierarchies between the groups. And they involve the permissibility of the imposition of criminal sanction to reinforce moral opprobrium, even when the behavior at issue is consensual conduct between two adults. The Lawrence Court’s 6-3 majority unequivocally rejected the propriety of punishment used to harden the lines between the protected and the excluded—and in the majority opinion, if not O’Connor’s concurrence,²³⁴ embraced an alternative view of the purpose of sexual conduct as an expression of commitment to a partner, not just as a means to procreation.

In Obergefell v. Hodges,²³⁵ the case upholding the right to marriage equality, the majority went even further in embracing same-sex relationships as an expression of family values²³⁶ while the dissents reaffirmed the need to channel sexuality into marriage—and to punish those who fell outside of such precepts. ²³⁷ Kennedy wrote that there “is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”²³⁸

The majority opinion added that the right to marry is not just about the couples’ relationship to each other, but also about their children. “Without the recognition, stability, and predictability marriage offers,” Kennedy wrote, “their children suffer the stigma of knowing their families are somehow lesser . . . . The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”²³⁹ The opinion thus saw denial of the ability to marry as a punishment imposed not only on the couple but on their children. ²⁴⁰ It accordingly equated the limitation of marriage to different-sex couples with imposition of a stigma on those raising families outside the institution.²⁴¹

The Obergefell majority did take sides in the culture wars—in recognizing the dignity and moral worth of same-sex relationships. In basing the decision on the changed nature of marriage, the Supreme Court acknowledged that marriage reflected a new moral sensibility: one that made autonomous choice, not religious or societal duty, the foundation of the marital relationship.²⁴² The Court accordingly went beyond the rejection of the punishment (while noting “the harm and humiliation” involved in the refusal to recognize same-sex families) to confer public recognition and moral worth on LGBT families.

The four justices who dissented rejected both the premise that marriage had changed and that the Supreme Court should acknowledge that change. Chief Justice Roberts’s dissent explained that “for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.”²⁴³

This reasoning is the same as the reasoning that justified the vilification of nonmarital sexuality a half century ago. In accordance with this reasoning, heterosexual sex, not just procreation, needs to be channeled into marriage and marriage needs to be about a moral command to avoid nonmarital sexuality.²⁴⁴ Punishment, whether material or symbolic, is the necessary complement to this reasoning.²⁴⁵

Alito’s dissent made explicit his objection to overturning traditional moral hierarchies. He wrote: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”²⁴⁶ In short, Alito’s concern lay directly with the ability to uphold the preferred values in the public square and fear that those who did so would now be the ones receiving punishment. And while he acknowledged that family understandings and behavior could change over time, he simply treated data such as the 40% nonmarital birth rate as further reason states could chose to double-down on traditional moral understandings²⁴⁷—drawing clear distinctions between preferred groups and those subject to moral condemnation even when a substantial or even majority of the public did not share such views.

Alito’s opinion accepted the right of moral traditionalists to insist on the primacy of heterosexual marriage and to punish those who create families or engage in sexual intimacy outside of marriage. He saw the majority, in contrast, as embracing same-sex families as entitled to equal moral worth and such views as necessarily punishing those who disagree as bigots. Moreover, he treated evidence of changing norms, such as the increase in nonmarital births, as evidence of a threat to the traditional moral order and therefore as additional reason for punishment. Framed in such terms, the legal question becomes one of power and authority to uphold the preferred views and, in Alito’s terms, punishment cannot be separated from the underlying values.

B. Abortion Revisited

With respect to abortion, however, neither the Court’s efforts to sidestep the morality of the underlying conduct nor its efforts to address the issues directly have yet succeeded. In the years after Roe, abortion became a political marker in part because the issue offers little opportunity for compromise.²⁴⁸ While the Court largely succeeded in making contraception more available without directly embracing the sexual revolution, the Court’s efforts to sidestep the moral issues underlying the abortion issue satisfied no one. Roe satisfied neither those who saw reproductive rights as essential for gender equality nor those who believe the status of the fetus is not an issue that could be “bracketed.” ²⁴⁹ These divisions, unlike those underlying recognition of LGBT relationships, have increased over time.

In Planned Parenthood v. Casey,²⁵⁰ the Court nonetheless tried to tamp down the divisions by directly engaging the values conflicts. Decided in the early 1990s, Casey²⁵¹ had been widely expected to reverse Roe outright.²⁵² Instead Casey preserved the core of the right to abortion, while permitting the states to impose new restrictions, such as waiting periods and parental consent provisions.²⁵³ Justice O’Connor’s plurality opinion was the only significant abortion decision for the Court written by a woman. She observed that the earlier decisions in Griswold, Eisenstadt, and Carey “support the reasoning in Roe relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.”²⁵⁴ Casey, alone in the Supreme Court’s reproductive rights decisions, made women’s relationship to the growing fetus central to the decision.²⁵⁵ It succeeded, however, only in delaying the day of reckoning over Roe itself.

Dobbs v. Jackson Women’s Health Organization²⁵⁶ is radically at odds with previous decisions that have used the concept of punishment to distract attention from inflammatory subjects. It is also at odds with the conception of judicial statesmanship, through which courts legitimate the judicial system while also recognizing social change and creating community in the midst of conflicting values’ clashes.²⁵⁷ Although Justice Alito claimed otherwise, the decision is designed to inflame and, in doing so, it is likely to empower state officials who wish to exercise their authority to punish—in order to affirm the moral superiority of their position, to reaffirm their values in the public square, to impose dominance over outgroups, and to restore a sense of hierarchical order that validates their position in society. The opinion itself invites such a response.

First, it goes out of its way to say not just that opposing views, but Roe itself were never legitimate. Alito’s majority opinion declares that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”²⁵⁸

Second, it dismisses women’s interest in their bodily integrity as of no consequence, suggesting that those interests are amply protected through existing laws.²⁵⁹

Third, while the opinion claims not to base the decision on recognition of a fetus as a human being from the moment of conception forward, it clearly views state actions based on such views as a legitimate basis for legislative action and declares that the fact that abortion serves to “destroy a ‘potential life’ ” justifies the Court’s treatment of Roe as precedent entitled to less deference than other Supreme Court precedents.²⁶⁰

Fourth, unlike other Supreme Court decisions announcing a major change in governing law (with all deliberate speed),²⁶¹ the Court provides no guidance for the states and no timelines for implementation. It simply overturns Roe and leaves the states—and the pregnant—on their own in the face of a rapidly shifting and still uncertain legal landscape.

The majority opinion thus has the hallmarks of an act of vengeance righting a wrong, rather than serving to provide judicial guidance in the face of contentious issues. It seeks to restore the moral hierarchy associated with the forces that see abortion as necessarily impermissible. It affirms states’ right to ban abortion without addressing the impact on the rights of states who wish to ensure its continuing availability. And in not only issuing the Dobbs’ decision, but in failing to restrain the states’ earlier vigilante laws,²⁶² the Court’s current stance suggests that the states will be free to treat abortion as murder and punish those who provide abortions, those who seek abortions, and those who aid and abet those involved with abortions in any way.

V. THE FUTURE OF ABORTION PUNISHMENT

Abortion has become a flash point for political division because it falls on the fault lines of cultural polarization and political realignment.²⁶³ After Dobbs, the factors that drive political divisions are likely to overlap with the factors driving calls to punish those seeking and providing abortions.

In analyzing and moving forward on these issues, it is first critical to understand the sources of the call for punitive measures and then to consider whether a focus on punishment can also provide a strategy for defusing the conflict.²⁶⁴ Without such a strategy, this Article concludes, the likely result is a replication of the conditions that preceded Roe: pregnancy as the punishment for sex, aggravating the existing class and regional bifurcation in unintended births; a high-profile fight between elite actors on the boundaries of post-Dobbs public morality; and selective enforcement that disproportionately penalizes poor and minority women. As an alternative, this Article proposes that using the punishment lens analysis can serve as a means to de-escalate the coming legal wars over abortion.

A. Values Polarization and Abortion Punishment

The analysis of the factors underlying the calls for punishment start with the factors driving political polarization. Political theorists link partisan polarization to a sorting between the parties based on cultural values. They describe those with conservative values orientations as favoring in-group unity and strong leadership, and having “a desire for clear, unbending moral and behavioral codes,” that include an emphasis on the importance of punishing anyone who strays from the code, “a fondness for systematization,” as well as “a willingness to tolerate inequality (opposition to redistributive policies).”²⁶⁵

Those with a liberal values orientation, in contrast, tend to be more tolerant to outsiders, to consider context rather strict rules adherence when it comes to determining appropriate behavior.²⁶⁶ They also demonstrate more empathy and less interest in strict punishment for violations of moral and behavioral rules and greater intolerance of inequality.²⁶⁷

Attitudes toward abortion both reflect and contribute to the partisan polarization.²⁶⁸ Abortion attitudes have become more partisan over time, and psychologist Drew Westen describes this outcome as a matter of intentional political strategy.²⁶⁹ Such a strategy was designed to attract people who see abortion in rigid moral terms to the Republican party in the 1990s,²⁷⁰ and as that happened, self-identified Republicans became more opposed to abortion.²⁷¹ Stances on abortion accordingly became a political marker.

Public opinion polls today confirm the high degree of partisan polarization on abortion. While 61% of all Americans believe that abortion should be legal in all or most cases, 60% of Republicans—and 72% of those who identify as “conservative Republicans”—believe that abortion should be illegal in all or most cases.²⁷² In contrast, 80% of Democrats and 90% of “liberal Democrats” believe that abortions should be legal in all or most cases.²⁷³ Public opinion polls indicate that support for the imposition of criminal sanctions closely tracks abortion views generally.²⁷⁴

These attitudes correspond to the purposes and pitfalls of punishment. All groups seek affirmation of their values, but the values to be expressed are not parallel in their relationship to the imposition of punishment. Abortion rights advocates seek to preserve a right to privacy free from government intrusion through the democratic process, including referenda as well as litigation. To the extent they wish to exact punishment for taking away abortion rights, they have suggested defeating anti-choice politicians at the ballot box,²⁷⁵ impeaching Supreme Court justices for perjury about their willingness to follow precedent,²⁷⁶ and requesting ethics investigations.²⁷⁷ We could also imagine more aggressive efforts to counter the efforts of anti-abortion activists who attempt to interfere with abortion in states where abortion remains legal.²⁷⁸ Some of the most important actions pro-choice states have taken, however, is greater support to assist those coming from out-of-state, protecting their own health care workers, and ensuring access to medication abortion. ²⁷⁹ The symbolism involves a greater and more visible state embrace of a right of abortion access.

The punishment desired by those opposed to abortion, by contrast, has two components. The first involves the expressive function of law and the declaration that abortion is wrong.²⁸⁰ The declaration reaffirms the moral hierarchy that elevates those who oppose abortion entirely; empirical studies indicate that when abortion is perceived as a “moral wrong” that produces outrage in those who oppose it; they dehumanize the women (and their partners) who seek abortions.²⁸¹ Expressing this moral opposition even has a “shaming effect” on those who require abortions because of significant health issues.²⁸² It also justifies subjecting those who seek therapeutic abortions to intrusive review of their doctor’s medical determinations or requiring those experiencing rape or incest to face onerous proof requirements, retraumatizing victims of sexual assault. Yet, the symbolic effect can occur with limited punishment, prosecuting only occasional cases that involve public defiance of the new abortion bans.

This dehumanization and shame, in turn, empowers those who would pursue the second component: waging a war to root out the practice. The National Right to Life Committee has proposed sweeping measures, for example, that would not only criminalize abortion itself, but treat it as a “criminal enterprise” that needs to be eliminated using “RICO-style laws” that would reach anyone providing any type of support to someone seeking an abortion. ²⁸³ These provisions target not only medical personnel but those providing abortion information.²⁸⁴ Others propose empowering not only state prosecutors but individual citizens to conduct surveillance on those visiting out-of-state abortion clinics, accessing internet websites providing abortion information, or even monitoring the pregnant (and their friends and family) more generally.²⁸⁵ These activities, particularly when carried out by private “vigilantes,” combine opposition to abortion with a moral crusade. While some laws immunize the pregnant from prosecution, existing laws in many states have already been used to prosecute women experiencing miscarriages for “feticide”²⁸⁶ and more draconian laws have been proposed that provide for prosecution for crimes based on an abortion.²⁸⁷ Even without new laws, the Attorney General of Alabama, for example, threatened to prosecute those crossing state lines to terminate their pregnancies or using abortion pills as child chemical endangerment, even if the patients legally obtain the pills within Alabama.²⁸⁸

Finally, prosecutions, particularly if they are brought against those who seek abortions, are likely to enforce gender, race and class hierarchies. As anti-abortion fervor has mounted, some states over the last decade have increased criminal investigations of various types of pregnancy loss, including not just self-induced abortions but also miscarriages, stillbirths, and any form of infanticide.²⁸⁹ These cases overwhelmingly target “pregnant people who are poor, young, have substance abuse issues or live in areas with limited health services.”²⁹⁰ Advocates fear the reversal of Roe will fuel more such cases and particularly harm women of color, already disproportionately overpoliced and prosecuted on pregnancy-related issues.²⁹¹ Farah Diaz-Tello, an attorney who works on reproductive health rights commented, “It’s this vicious cycle where lack of access, . . . increased scrutiny and stigma around abortion, as it becomes further restricted or criminalized, leads to more criminalization.”²⁹² And the fact that the individuals are poor, minority group members, substance abusers, or otherwise lack full control of their lives contributes to the willingness of others to impose moral condemnation on their behavior.

Dobbs will only make this worse.

B. Punishment in the Courts

Striking down Roe invited the states to adopt abortion bans that, in criminalizing abortion, also prescribe punishment. The courts have historically policed the limits of criminal punishment, requiring, for example, that criminal laws provide clear notice as to what acts are proscribed, that those accused enjoy appropriate procedural protections, and punishments are proportionate to the offence. This Article has gone beyond these traditional concerns to address how the Supreme Court uses a punishment lens to accomplish broader objectives, particularly in the face of irreconcilable and intrinsically divisive issues, and issues that may threaten judicial legitimacy. Abortion certainly qualifies as divisive, and Dobbs has already raised serious concerns about judicial legitimacy.

Indeed, in the years since Roe, anti-abortion activists have made the fetus the issue—with the impact on the person forced to give birth disappearing from view.²⁹³ When the fetus becomes the subject of concern, consensual sex—with no victims other than public mortality—is beside the point. When prosecutors act to prosecute abortions, they are passing moral judgment on the permissibility of the abortion itself and often imposing significant penalties.²⁹⁴

Two arenas in particular, however, offer the Court an opportunity to tamp down the Dobbs-inspired conflicts.

First, if the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way would be to take seriously its own statement that all it has to do is to return the issue to the states.²⁹⁵ Taking that seriously requires protecting the rights of states that wish to secure access to abortion—and protecting, as Justice Kavanaugh suggested in his concurrence, the constitutional right to travel.²⁹⁶ The most basic question involving the right to travel is whether citizens of one state can travel to another state, return to their home state, and be punished for their out-of-state conduct. Existing precedent from the Roe era suggests that such conduct is constitutionally protected and other limits on state jurisdiction ordinarily preclude punishment for out-of-state acts.²⁹⁷ Affirming the constitutional right to travel should also mean that states cannot burden exercise of the right to travel, by punishing, for example, those within the state who assist the traveler in leaving the state or acts that a pregnant person takes within the home state, such as researching out of state options, packing one’s bags, or driving to the state line for the purpose of accessing abortion in another state, just as the Court concluded in Hobby Lobby that forcing an employee to choose between an ACA compliant health plan or a monetary contribution to ACA funding constitution a burden on religious freedom.²⁹⁸ The Court should also strike down punishment that creates obstacles to First Amendment rights of expression, ²⁹⁹ such as penalizing websites or advice to individuals that contain accurate information about abortion and out-of-state availability.³⁰⁰ The Court could also recognize that states encouraging private citizens to track those accessing out-of-state abortion clinics, websites, menstrual periods or other personal information either serves no legitimate state purpose to the extent it is intended to penalize the right to travel or, like searching the marital bedroom for contraceptives, is so intrusive as to be constitutionally suspect. ³⁰¹ Striking down punishment that burdens the right to travel could simultaneously affirm state abortion bans and still protect its availability in the states that permit it.³⁰²

The second arena where a punishment lens could be effective in defusing abortion controversies involves women’s right to medical treatment to protect their health. Statutes banning abortion pose a dilemma for doctors; they report that they fear retaliation for performing abortion-like procedures—even when the fetus is dead or the health threat to the patient is significant.³⁰³ In these cases, the risks are asymmetrical: the doctor faces punishment for “doing the right thing” and little in the way of negative consequences for not acting, even if the patient dies as a result.³⁰⁴ Uncertainty itself thus imposes punishment—and serves the purposes of those who would root out abortion (with inevitable spillover effects to abortion-like procedures). Yet, criminal prosecutions of the doctor in these cases, while risky and expensive for the doctor personally, could bring the criminal justice system into disrepute. For those seeking to ensure abortion access, the question therefore should be how to bring the issue of punishing doctors—and the corresponding ability of the pregnant to receive abortions necessary to protect their health—into public focus. Test cases on enforceability of abortion bans in circumstances threatening the life of the mother might bring greater clarity.³⁰⁵ Such suits could also focus attention on the health threat that punishment poses to pregnant patients. Heavy-handed interventions into newborn care, in which governors sought to prolong the lives of children born with substantial birth defects, helped to discredit the interventions.³⁰⁶ The same approach might work in the context of pregnancy care. Justice Blackmun’s initial draft opinion in Roe sought to focus on the issue of professional judgment.³⁰⁷ Partisan differences on abortion are smaller (and overall support for punishment is substantially less) when the mother’s health is at risk.³⁰⁸ Striking down abortion laws that do not clearly immunize doctor’s decisions about medically therapeutic abortions is a first step; recognizing that the pregnant have a right to abortions necessary to protect their health is an important second step.

In cases of rape and incest, the effort ought to go further to highlight the callous treatment of such victims. Governor Greg Abbott declared, in response to questions about precluding abortion for the victims of involuntary sexual activity, that “Texas will work tirelessly to eliminate all rapists from the streets of Texas . . . .”³⁰⁹ In short, the Governor tried to deflect claims of punishment of one type (forcing the victims of rape to carry the rapist’s child to term) by talking about another type of punishment—that imposed on rapists. The veracity of the claim is not the issue, particularly because Texas has one of the highest rape rates in the country and Abbott had done little to combat it.³¹⁰ As with abortions necessary to protect the lives of the pregnant, partisan differences narrow considerably on cases of rape and incest and the failure to provide such exceptions underscores the punitive nature of the restrictions. ³¹¹

Finally, cases in which patients are prosecuted ought to be used to highlight the cruelty associated with abortion restrictions in the United States.³¹² Restricting access to abortion is in fact just one more form of punishment of the marginalized, with the same groups that support abortion restrictions also opposing more generous provisions to the poor.³¹³ White evangelical Protestants, for example, the religious group most opposed to abortion,³¹⁴ is also one of the groups most likely to respond that aid to the poor does more harm than good.³¹⁵ And the same groups have become more likely to oppose immigration and efforts to promote racial equality³¹⁶ and to favor imposition of preferred values through authoritarian means.³¹⁷ The cruelty of abortion bans is a large part of what motivated the decision in Roe. With abortion opponents calling for draconian enforcement measures,³¹⁸ it should be a factor in mobilizing the opposition to post-Dobbs enforcement of abortion restrictions.³¹⁹

CONCLUSION

Focusing on punishment will not resolve intractable values disputes; it simply changes the subject. Changing the subject, however, does offer a tactic for diffusing intractable disputes—or a long-term strategy for reframing what is at stake. In either case, it makes visible the consequences of public actions, such as abortion bans, on those affected by them in ways that can serve to underscore their cruelty. The public wants its core values expressed and respected in the public square; in cohesive societies the values are consensus based, and punishment reinforces them. The urge to punish, when embedded in group conflict, inflames divisions (threatening violence or civil war); channeling it effectively is central to the rule of law. Understanding this dynamic gives the Court tools (and a motive) to construct an offramp: it also allows states to decide their own approaches to abortion while protecting the pathways out of the states that ban it, and ensures that doctors can save the lives of their patients.

96 S. Cal. L. Rev. 1101

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June Carbone*

* Robina Chair in Law, Science and Technology, University of Minnesota Law School.

Naomi Cahn†

† Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc ’69 Research Professor in Democracy and Equity, University of Virginia School of Law. Thanks to workshop participants at the University of Minnesota Law School Squaretable for comments and to Sam Turco for research assistance, and to Katherine Bake, Mary Anne Case and John Q. Barrett for comments on an early draft.

On the Authority of the Supreme Court

October 2023February 2024R. George Wright

As a governmental institution, the Supreme Court claims and attempts to exercise authority not just over other courts,¹ branches of federal government,² and the states,³ but over the general public as well.⁴ Without any such authority, the Court as an institution would be unrecognizable.

The Supreme Court’s authority comprises a positive, or broadly sociological, element as well as a normative element that focuses on a possible moral obligation to defer to Supreme Court decisions. While these positive and normative elements are not entirely separable, some useful distinctions can be drawn. Thus, at any given point, the Court might effectively exercise what is popularly thought to be morally binding, legitimate authority, even if no genuinely sufficient argument for such authority can be made. And even if the underlying genuine normative authority of the Court remains constant, at whatever level, public respect for and deference to the Court as an institution may trend up or down.⁵

Of late, the Court itself has both defended its own moral authority and also presented grounds for questioning that moral authority. Neither these defenses nor these critical assessments are confined to any Supreme Court political grouping. This debate within the Court itself as to its own morally binding authority very roughly corresponds to parallel debates among the public as well as among jurisprudentially oriented writers.⁶

If there is any simply stated bottom line, it is that, as discussed below, the Court may well not hold much genuinely binding moral authority, and the general public may itself be ambivalent on that question. On the other hand, the Court may not actually need much genuine, or much publicly perceived, moral authority in order to perform most of its work.⁷

At its simplest, “[a]uthority on the part of those who give orders and make regulations is: a right to be obeyed.”⁸ Authority, as discussed herein, relates in some fashion to the idea of legitimacy.⁹ We can begin to clarify the idea of authority by noticing that there is a difference between merely conforming to an authority’s dictate and actually complying with that dictate.¹⁰

Thus, for example, one might wear a mask in a pandemic not because a court so decrees, but because of one’s preexisting reasoned judgment in favor of wearing a mask.¹¹ A court’s authority is most clearly on display when persons wear a mask largely because a court has so decreed, even if the public’s own independent reasoning, on the merits, does not favor wearing a mask. Authority is, thus, most conspicuous when we obey, despite our own continuing best judgment on the underlying merits.¹² Otherwise put, authorities, including institutional legal authorities such as the Supreme Court, have, within limits, “a right to err, or to make mistakes”¹³ without thereby flinging the door open to mass disobedience.

The institutional authority of the Supreme Court fits best within Max Weber’s ideal type of rational-legal authority,¹⁴ as distinct from authority that is based primarily on tradition and history,¹⁵ or on some form of charismatic authority.¹⁶ To some degree, though, the Supreme Court may indeed draw as well on history and tradition, as in its costumes, ceremonies, trappings, formalities, and rituals in maintaining its authority.¹⁷

Useful for our purposes is Professor Richard Fallon’s distinctions among legal legitimacy, sociological legitimacy, and moral legitimacy,¹⁸ and their possible tradeoffs. The Supreme Court’s authority depends, to one degree or another, on what we might call its pedigree, lineage, or institutional derivation. There may well be cases in which members of the Court are inclined, perhaps subconsciously, to sacrifice a bit of their legal or methodological legitimacy for the sake of greater sociological legitimacy, as measured by public compliance, Court popularity, or the Court’s institutional prestige.¹⁹ Finally, the Court may exercise sociological legitimacy in obtaining widespread popular obedience and may be widely thought to be institutionally authoritative, even when the jurisprudential arguments for a genuine moral obligation of obedience to the Court’s dictates are weak.²⁰

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Introduction

I. The Major Questions Doctrine and Major Questions Avoidance

A. The Major Questions Doctrine(s)

B. Major Questions Avoidance

“Slicing”

“Lumping”

“Glossing”

“Bypassing”

II. The Benefits and Costs of Major Questions Avoidance

A. Benefits

B. Costs

Administrative Burdens

Litigation Risks

Political Costs

III. Major Questions Avoidance and the Legitimacy of the Administrative State

A. Presidential Legitimacy

B. Legislative Legitimacy

C. Expert Legitimacy

D. Participatory Legitimacy

IV. Major Questions Anti-Avoidance

A. Ex Ante Anti-Avoidance

B. Ex Post Anti-Avoidance

Conclusion

98 S. Cal. L. Rev. 1497

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

INTRODUCTION

I. THE MAJOR QUESTIONS DOCTRINE AND THEORIES OF ITS LEGITIMACY

A. The Canonization of the Major Questions Doctrine

1. Historical Threads of the Major Questions Doctrine

2. The Modern Major Questions Doctrine and Its Justification

3. The Modern Major Questions Doctrine’s Linguistic Turn

B. The Major Questions Doctrine as a High-Stakes Linguistic Canon

1. Reconstruction of the “High Stakes” Linguistic Defense of the Major Questions Doctrine

C. The Major Questions Doctrine as an Anti-Literal Linguistic Canon

1. Reconstruction of the “Anti-Literalism” Defense of the Major Questions Doctrine

II. PHILOSOPHICAL AND EMPIRICAL BACKGROUND

A. Stakes and Knowledge

1. Philosophical Epistemology of Stakes and Knowledge

2. Do Stakes Impact Knowledge? Empirical Perspectives

3. From Philosophy to Legal Philosophy

B. Context and Anti-Literalism

1. Anti-Literalism and Context in Ordinary Language