A Conservative Judge’s Critique of the Supreme Court’s Reliance on Tradition

Judges who are committed to originalism, which seeks to interpret the Constitution based on what it meant when it was adopted, often say they are guided by “text, history and tradition.” The phrase rolls nicely off the tongue.

But one of those things is not like the others, a conservative federal appeals court judge said this month in a lively talk at Harvard Law School that critiqued recent trends at the Supreme Court.

“Traditionalism gives off an originalist ‘vibe’ without having any legitimate claim to the originalist mantle,” said the judge, Kevin C. Newsom, who was appointed to the U.S. Court of Appeals for the 11th Circuit in 2017 by President Donald J. Trump. “It seems old and dusty — and thus objective and reliable. And maybe it is indeed all those things. But let’s be clear: It’s not originalism.”

The Supreme Court’s blockbuster 2022 decisions eliminating the right to abortion and expanding gun rights both drew on traditions that emerged after the constitutional provisions in question were ratified. The rulings did not turn on their discussion of tradition, but nor were they minor asides.

Scores of decisions, including ones from every avowed originalist justice, have relied on post-ratification traditions, as Sherif Girgis, a law professor at Notre Dame, demonstrated in a comprehensive exploration of the topic published last year in The New York University Law Review.

“Though increasingly dominant in this originalist court’s opinions,” he wrote, “the method has no obvious justification in originalist terms.”