Tradition-based Originalism and the Supreme Court
Originalism is ascendant in the American judiciary, all the way up to the nation’s highest court. This is no small feat. It took over 40 years to mainstream both originalism — the notion that a constitutional provision should be interpreted by its meaning at the time it was adopted — and textualism, a form of originalism applied to statutory law. Speaking to the Federalist Society in November 2020, Supreme Court Justice Samuel Alito offered telling evidence of the ascent: “Consider these two statements by Justice [Elena] Kagan: quote, ‘We’re all originalists now.’ And, quote, ‘We’re all textualists now.’”
While the broad ground has been claimed, originalists are now engaged in an intense debate over how to apply originalism and textualism in practice. On the Supreme Court, as Alito noted in the same speech, there have been “erroneous elaborations of Justice [Antonin] Scalia’s theories” — a likely reference to some of the Supreme Court’s recent decisions that purport to employ the textualist method, like Bostock v. Clayton County (extending Title VII’s prohibition on sex discrimination to sexual orientation and gender identity) and McGirt v. Oklahoma (holding that most of eastern Oklahoma is, under the federal Major Crimes Act, an American Indian reservation). Originalists off the Supreme Court are sparring, too. A few champion a “common good” originalism that focuses on the Constitution’s telos. Others advocate libertarian varieties of originalism that place primary weight on the protection of individual sovereignty when evaluating government actions. Still others promote a “living originalism” that incorporates progressive ideology, while newer efforts are underway to persuade originalists to abandon their project in favor of, as Harvard Law professor Adrian Vermeule describes it, “a substantive moral constitutionalism.”
This intense debate about constitutional theory should come as no surprise to those familiar with originalism’s history. As professor Ken Kersch put it in Conservatives and the Constitution, the success of originalism can lead people to imagine that the post-war conservative judicial critique “was constituted all but exclusively by a commitment to originalism, understood as we, and conservative law professors, understand it today.” This, of course, is a myth. Before the mid-1970s, conservatives did not reduce the judiciary’s proper role to “a simple matter of hermeneutics concerning the proper way to read legal texts.” Rather, they were “focused on the nature and what they took to be broader legitimate — and illegitimate — purposes of American constitutional government itself.”
But in the decades that followed, this deeper debate was submerged as conservatives coalesced around originalism “as a consensus position...in reaction to their liberal/progressive counterparts.” By suppressing disagreements about the legitimate ends of American constitutionalism, conservatives shifted the focus of their judicial critique. Unlike the earlier effort to guide judicial power with a proper understanding of the American political tradition, their new approach made a different promise: that theoretical, technical, rationalistic tools of interpretation would constrain the courts — a core conservative concern after the Supreme Court of the 1950s and 1960s, led by Chief Justice Earl Warren, arrogated to itself various decisions previously left to democratically elected entities.
Now that originalism and textualism predominate, the initial divide has resurfaced. Attorney general Edwin Meese foreshadowed this development in his landmark 1985 speech to the American Bar Association, in which he explained that while embracing originalism was necessary to restrain the Court to its constitutionally specified role of interpreting the law, “[t]he judicial process is, at its most fundamental level, a political process...wherein public deliberations occur over what constitutes the common good under the terms of a written constitution.” For Meese, originalism and textualism would anchor the judicial inquiry in the Constitution’s terms and history; exercising judgment, however, would still require distilling the political tradition reflected in those terms and history. Accordingly, in a world where we really are “all originalists” and “all textualists,” the relevant divide in American constitutional theory is not between originalism and non-originalism; it is between opposing characterizations of the nature of our political tradition, as applied through the Constitution’s written guarantees.
While they wrestle with the application of that tradition through the lens of originalism, conservatives would be wise to revisit the writings of constitutional law scholar and noted Yale Law professor Alexander Bickel. A contemporary of Robert Bork, Bickel understood that the characterization of originalism and textualism as purely neutral interpretive rules without mooring in a particular historical or cultural context was artificial. Instead, he argued that the “best” way of “finding the original understanding” is “a function of statecraft and of historical insight.” His judicial philosophy was thus not one of applying technical rules, but of determining how the judiciary should exercise its judgment in a manner consistent with the American political tradition.
As he put it in The Morality of Consent, that tradition consists of not one, but two traditions — the contractarian and the Whig — that “have competed, and still compete, for control of the democratic process and of the American constitutional system.” The contractarian “tradition” is something of a misnomer because it roots the Constitution and its guarantees not in historical customs, but in the social-contract thought experiment. Any judicial philosophy grounded in contractarianism, Bickel argued, is “legalistic” and “ultimately authoritarian” because it “assault[s] the legal order [with] moral imperatives,” thereby undermining the accommodation and consensus building needed for lasting change and social peace.
The Whig tradition, by contrast, is truly a tradition: It begins with society as it is (and as it once was). On that view, rights secured by the Constitution are not abstractions, but the product of moral absolutes applied throughout a given cultural history and experience.
Bickel was a self-identified Whig who opposed both the Warren Court’s attempts to impose an “egalitarian society” though judicial supremacy as well as the proto-originalism espoused by those like Justice Hugo Black. In Bickel’s view, both approaches required privileging the contractarian abstractions of “liberty” and “equality” over the real-world experiences of the American people living out a millennia-old political tradition. In their stead, he developed a judicial philosophy concerned less with technical hermeneutics than with preserving the constitutional guarantees in a manner that reflects the foundational prerequisites of the American tradition.
In a time of deep national division, Bickel’s jurisprudence offers the judiciary an important path — one that directs us away from turning cultural preferences into constitutional imperatives and toward an enduring self-governance. Were his tradition-based approach combined with originalism, it might help us achieve what the conservative judicial critique sought in the first place.
A TRADITION-BASED JURISPRUDENCE
While Bickel is perhaps most remembered today for coining the phrase “counter-majoritarian difficulty” — the problem of unelected judges overturning the will of popular majorities — he was not primarily focused on what judges should be prohibited from doing. Rather, like other pre-originalist conservative critics of the Warren Court, Bickel’s judicial philosophy began by striving to identify what sources could legitimate a constitutional decision — particularly when the text’s original meaning is unclear. This distinct focus is clear from his most famous book, The Least Dangerous Branch.
Bickel’s principal goal in this work was to justify Brown v. Board of Education, the outcome of which he supported. Having served as a law clerk to Justice Felix Frankfurter when Brown was argued, Bickel understood more profoundly than most the challenges the case posed to originalism. As he explained in “The Original Understanding and the Segregation Decision,” he was troubled by the Brown Court’s “brevity” in analyzing whether the original understanding of the 14th Amendment prohibited racially segregated schools.
Writing for the Court, Chief Justice Warren had concluded that the original meaning was “inconclusive,” justifying a pivot to non-originalist, social-science reasoning. But for Bickel, the originalist inquiry was of first importance; it “would be absurd,” he wrote, to start elsewhere. As he put it, “[t]he original understanding forms the starting link in the chain of continuity which is a source of the Court’s authority, and it is not unnatural that appeals to it should recur as consistently as they do.” Bickel also believed the originalist inquiry on the question presented in Brown had a clear, albeit unsatisfying, answer: The 14th Amendment did not reach the issue of segregation in public schools.
But for Bickel, the kind of originalism that dwelt solely on a constitutional provision’s application to circumstances at the time it was enacted was an originalism that precludes the task required of the judiciary in Federalist No. 78: that of “judgment.” If a judge expects originalist evidence alone to explain how a constitutional provision applies to specific present circumstances, he is expecting too much.
Moreover, as Bickel observed, the originalist inquiry is “subject to caveats applicable to the use of legislative history as an aid in statutory construction” — caveats that originalism purports to overcome. As with legislators vis-à-vis legislative enactments, the various founders ratified the same constitutional provisions for different reasons. It would take more than historical inquiry to distill from those divergent reasons the meaning that comported with the political traditions embodied by the Constitution; it would take judgment from a judge steeped in those traditions.
Throughout Bickel’s writings, he would root his approach in the famous language of Chief Justice John Marshall in McCulloch v. Maryland: “[W]e must never forget that it is a constitution that we are expounding.” By this, Marshall meant (and Bickel would often quote this, too) that the Constitution was intended not to “partake of the prolixity of a legal code,” but to be “understood by the public.” The Constitution would mark the “great outlines” and “important objects,” but it would leave considerable space for the people’s historical practices to “adapt” the Constitution’s powers “to the various crises of human affairs.”
Accordingly, Bickel concluded, constitutional interpretation must be “guided in [its] search of the past by our own aspirations and evolving principles, which were formed in part by that very past.” By “immers[ing] themselves in the tradition of our society and of kindred societies that have gone before,” he wrote, judges are able to achieve continuity between contemporary practices and our foundational ideals. To Bickel, Brown could be justified on these grounds: The decision vindicated America’s foundational understanding of human equality before the law while also leaving some matters to the states to determine “what expedients of accommodation and compromise they deemed necessary” to bring about that understanding in practice.
The proper formation of judges is an implicit premise of Bickel’s tradition-based jurisprudence. Judges, he declared, should possess a “habit of mind” that values “the ends of government” as understood by our society’s “enduring values” and the “undeviating institutional customs” that give them shape. This kind of formation may clash with the modern emphasis on judges mastering only technical, mechanical rules when interpreting texts, but it accords with how the founding generation understood law and judging.
For instance, as Alexander Hamilton acknowledged in Federalist No. 78, judges are indeed “bound down by strict rules and precedents,” including those written in the Constitution. But hermeneutics is merely a tool for interpreting those rules and precedents, and it risks ideological manipulation if it does not account for the origins of our tradition’s legal rules. A judge, therefore, must be formed in a “long and laborious study” of Anglo-American legal norms. Thomas Jefferson made a similar observation, explaining that a lawyer can only truly understand the law in our republic with a “ground-work” laid in “Ethics, Religion, natural and sectarian, and Natural Law.”
In Federalist No. 49, James Madison remarked that our law is the product of opinion that is “ANCIENT as well as NUMEROUS,” rooted in our past institutions and cultural experience. Consequently, our laws don’t achieve clear meaning simply because they are, as he put it in Federalist No. 37, “penned with the greatest technical skill” or are “passed on the fullest and most mature deliberation”; it is only when “their meaning [is] liquidated and ascertained by a series of particular discussions and adjudications” that it becomes evident. In other words, our abstract legal values achieve substantive shape only through Americans’ experience with them over time. A judge is called upon to be a student of that evolution, and to apply this knowledge when a legal provision lacks a discernable controlling meaning.
Bickel’s understanding of the judicial role has profound implications for how courts relate to the political process. Legislators, as representatives of various constituencies, work in generalities and with expedience in mind, making it harder for them to see how particular political acts affect our society’s foundational values and institutions. Judges, thanks to their habits of mind and the nature of case-by-case adjudication, are better situated to apply foundational principles to the “flesh and blood” of specific circumstances. When legislative action goes under judicial review, the short-term and swiftly changing valences of the legislature are reconciled with the enduring language and concerns of the judiciary, producing what Bickel called a “colloquy” through which the preferences of momentary majorities are refined by their application to concrete cases. This colloquy generates genuine popular consent to American government while also providing for the republic’s long-term stability.
Bickel’s consent-creating colloquy rests on a certain understanding of law — one, as he says in The Morality of Consent, that is not “a law of rules.” Rather, for Bickel, the law is “a process,” though not a mathematical one; it is the manner by which a society asserts its values. Respecting those values, along with the institutions that shepherd them, is essential to maintaining the long-term stability of a republic founded on self-government.
As Bickel explained in The Supreme Court and the Idea of Progress, the Warren Court’s fatal conceit was failing to appreciate the limits of law in preserving self-government. The Court justified its theory of judicial supremacy on the grounds that it maximized majoritarian choices, either those at present or those that, in the justices’ view, a more enlightened majority would make in the future. This overreliance on law, Bickel believed, ignored the salience of culture, and wrongly approached the law as the principal means by which difficult social questions should be resolved. The proto-originalism of Justice Hugo Black was insufficient as well; its overreliance on law led judges to deploy “selected historical slogans” to constitutionalize complex problems that the Constitution left the people free to resolve over time. For Bickel, a better judicial philosophy would interpret constitutional guarantees in favor of preserving our foundational values while leaving space for the “extra-legal” areas of politics and culture to apply them through American customs and experience.
ORIGINALISM SUPERSEDES BICKEL
Pre-originalist conservatives shared many of Bickel’s premises and concerns. In fact, Bickel’s ideas heavily influenced Robert Bork, a leading early originalist and Bickel’s Yale colleague. Bickel and Bork were united in identifying, as the latter put it, “a hard, sharp doctrine to control judicial review.” They both appreciated the interpretive significance of a provision’s original understanding, and they both believed the Warren Court had wrongly arrogated and extended the Supreme Court’s authority. Moreover, as Bork noted in Tradition and Morality in Constitutional Law, he thought Bickel correct to conclude that “[o]ur constitutional liberties” “do not rest on any general theory,” but “arose out of historical experience and out of political, moral, and religious sentiment.”
Nevertheless, Bickel’s approach diverged from the originalist critique of the Warren Court that Bork would go on to pioneer. Unlike Bickel, Bork doubted that a judicial philosophy of “tradition and wisdom” — which Bork amusingly denigrated as “a cross between Edmund Burke and Fiddler on the Roof” — could constrain the judiciary. To be sure, as Bork acknowledged in Tradition and Morality, Bickel was correct to observe that, when it came to defining constitutional guarantees, “all we ever had was a tradition.” Nonetheless, Bork concluded that this tradition had been “shattered” by the Warren Court. “Now,” he declared, “we need theory.”
His search for a comprehensive theoretical constraint on judicial power culminated in the originalism we know today. Bork spelled out this grand unified theory in a landmark essay of modern originalism: “Neutral Principles and Some First Amendment Problems.” His argument departed from Bickel’s tradition-based jurisprudence in at least three crucial respects.
First, Bork argued that judges should not understand the law produced by the Madisonian system as the result of a process of diverse, extra-legal institutions and political factions engaging within the limits of culture, time, and place. Instead, he called on judges to look no further than majoritarianism — the right of then-present political majorities to determine any unspecified constitutional value “for no better reason than [that] they are majorities.”
Second, Bork maintained that defining the Madisonian system based on majoritarianism offered judges a “neutral principle” that would consistently require them to abstain from expounding on foundational values. The judicial role envisioned by Bickel, Bork argued, did “not carr[y] the idea of neutrality far enough.” If judges were left to apply foundational principles by attempting to prudently consider national tradition and experience, they could artificially cabin a principle that a majority had adopted. The only proper answer, in Bork’s view, was to apply what majorities agreed to — unless a new majority said otherwise.
Third, Bork asserted that “the choice of ‘fundamental values’ by the Court cannot be justified” by anything other than what is “clearly specifi[ed]” in the Constitution itself. Constitutional guarantees were to be grasped as discrete constraints on an otherwise majoritarian system. Whenever original meaning was indeterminate, the answer was easy: the majority rules.
From the perspective of both coalition building and opposing the Warren Court’s excesses, Bork’s shift to a theory-driven originalism made sense. This development produced a vocabulary that those of any political stripe could embrace, at least generically — no one was in favor of “judicial activism” or “legislating from the bench.” Because, as Justice Scalia would put it, “the rule of law” is “a law of rules,” the interpretive inquiry was — at least superficially — simple: What did the text mean to the people who had adopted it? Defining originalism primarily by what it opposed also allowed the method’s champions to emphasize that, while not “without its warts,” originalism could confidently provide answers to the most divisive constitutional debates while skirting the more difficult question of what sources could legitimate interpretive judgment.
The move from Bickel’s tradition-based jurisprudence to theory-heavy originalism also had principled merit. The “primary commitment” of the early originalists, as Keith Whittington explains in “The New Originalism,” “was to judicial restraint.” “Originalist methods,” he observes, “were understood as a means to that end.” Given this focus, a comprehensive interpretive methodology — particularly one derived from the Constitution, rather than imposed upon it — had intuitive appeal. Supplying judges with clear interpretive rules also addressed a tension in Bickel’s approach: Bickel may have argued for a tradition-based jurisprudence because it best reflects the American experience with our constitutional guarantees, but the lived experience of Americans in the 1950s and 1960s belied Bickel’s refined understanding of judges. One can understand the originalists’ insistence on clear, if abstract, rules in the face of judges who were simply not formed to appreciate our political traditions when interpreting the law.
But Bickel sought restraint too, and his approach does not necessarily conflict with originalism. For Bickel, restraint occurred through the colloquy between the Court and the democratic branches over the application of our political traditions. On this matter, originalists largely agree: As Scalia explained in National Labor Relations Board v. Noel Canning, “practice should guide our interpretation of an ambiguous constitutional provision,” and it should be used to illuminate — not eliminate — the Constitution’s text and structure.
Bickel also believed constitutional interpretation must be anchored in neutral principles. The crucial question, however, is whether the abstract principles originalists use to fill gaps in historical analysis are truly reflective of America’s political traditions. In some cases, they are. But in others, those principles appear less like our political traditions and more like ideological abstractions — abstractions used to fill gaps when the original understanding does not provide a clear answer. Scalia’s jurisprudence provides an example of both scenarios.
When our political traditions justify abstract interpretive commitments to constraint and majoritarianism, Scalia would invoke them. For example, he employed arguments that retain an echo of Bickel’s tradition-based jurisprudence in opposing expansions of unenumerated rights and tiers of scrutiny, as in the case of United States v. Virginia. Similarly, he upheld traditional practices against expansions of the Supreme Court’s makeshift tests for Establishment Clause claims, as evident in his Lee v. Weisman dissent. And to resolve the question of whether the Constitution permitted race discrimination, Scalia expressly agreed with Bickel in City of Richmond v. J. A. Croson Company: He quoted the latter to say that race discrimination’s inherent illegality is proved by our best national traditions being manifest in “the great decisions of the Supreme Court and the lesson of contemporary history.”
But when our political traditions might support either case-by-case adjudication or less-rigid judicial tests, Scalia’s record is quite different. Take, for example, Employment Division v. Smith. There, Scalia (writing for the Court) revised decades of free-exercise jurisprudence by authorizing judicially crafted religious accommodations. As professor Douglas Laycock observes, “literally no one, including the Justices in the majority,” understood free-exercise precedent as Smith did. And by Smith’s own admission, the revision was not a product of the Free Exercise Clause’s original meaning, nor did it have anything to do with the nation’s long tradition of practical religious accommodation. Instead, Scalia rested the Court’s decision on an admitted “prefer[ence]” for majoritarianism. In his view, the Free Exercise Clause’s history had only a “permissible” answer to the question. Rather than concluding that the clause should be construed in line with historical practice, he decided that leaving accommodation up to the majority of the public “must be preferred,” even if it placed unpopular religious practices “at a relative disadvantage.”
Similarly, in Troxel v. Granville, Scalia refused to recognize a judicially enforceable right of parents to direct their children’s upbringing. This right, Scalia conceded, is encompassed by the Declaration of Independence, the Ninth Amendment, and the First Amendment, and is an area of life where, per our political tradition, “the state has no power to interfere.” But he insisted that the judiciary must ignore those deep roots and their consequences because the Constitution does not mention the right explicitly, and the precedents upholding the right came out of a doctrine that, in Scalia’s view, wrongly elevated the judiciary over democratically elected bodies.
In the free-speech context, as I have previously written in these pages, many originalists have embraced the absolutist, highly theoretical approach to speech neutrality that is reminiscent of what Bickel criticized in the Warren Court. They have done so in part because, in the view of these originalists, it better constrained the Court than an appeal to our traditions might. To cite just one example, in Brown v. Entertainment Merchants Association, Scalia (writing for the Court) invalidated California’s attempt to restrict the sale of graphically violent video games to minor children on free-speech grounds. While the Court’s strict-scrutiny analysis was proper, the majority addressed the underlying speech issue in sweeping language, ultimately rejecting the claim that legislatures could restrict access to such games based on the combination of novel technology and the unknown risks of minors virtually engaging in graphic violence.
In a similar vein, two recent decisions involving federal statutes demonstrate how a rationalist, technical approach to textualism can similarly rebuke our traditional practices and understandings. Writing for the Court in McGirt, Justice Neil Gorsuch insisted that genuine textualism interprets a statutory term by looking to “one place”: “the Acts of Congress.” Considering how a community understood its own language, he added in Bostock, “impermissibly seeks to displace the plain meaning of the law with something lying behind it.” Any evidence demonstrating that a particular interpretation would be unexpected constitutes legislative history, which is out of bounds in the textualist inquiry. As he acknowledges, this approach may give future interpreters “expansive” authority; it may elevate “legalistic” meanings over ordinary ones, and some may “dismiss it as wooden or literal. But it is the law.”
My purpose in comparing the contractarian tendencies of originalism and textualism with Bickel’s tradition-based jurisprudence is not to suggest an either/or choice. It is certainly true that Bickel was not an originalist, and while he died before originalism rose to prominence, it seems unlikely that he would embrace it fully today. As discussed, conservatism’s move away from Bickel’s approach and toward originalism was largely justified at the time. Nevertheless, incorporating Bickel’s tradition-based jurisprudence today would offer a check on originalism and textualism’s more theoretical strains.
Unlike theory-heavy originalism, Bickel’s philosophy recognized that “the true distinction, relevant to the bulk of the Court’s business, lies not so much between more and less acceptable principles as between principles of different orders of magnitude and complexity in the application.” Where originalists like Bork and Scalia confidently insisted that the Constitution provided “easy answers” to many interpretive questions, Bickel was less convinced that this was all that common. Where early originalists understood their methods as guarantors of majoritarian results, Bickel did not think the Madisonian design could be reduced to simple majoritarianism. Where early originalists sought to segregate the judiciary entirely from the development of our political traditions, Bickel recognized that the interaction among the branches was not only inevitable but, as was the case in Brown v. Board of Education, could be a force for good. And where early originalists understood “the rule of law as a law of rules,” Bickel saw the law as a value-laden “process,” and was thus far less concerned with the problems of case-by-case adjudication, so long as that adjudication reflected our political traditions.
His approach offers originalists a less absolutist judicial philosophy, one that can keep originalism’s contractarian tendencies at bay by refusing to resort to artificial historical analogies, reductionist reasoning, or conflating law with mechanical formulae. Rather, Bickel’s judicial philosophy is one of distillation. It is less concerned with technical meanings than with what we know from overarching principles, enduring practices, and what Alexis de Tocqueville called “habits of the heart” — those ingrained ways of living out the characteristics that shape a given people.
ORIGINALISM AND NATIONAL MEMORY
Bickel’s work provides important insights to originalists wrestling over how (or whether) to apply their method in a world where originalism and textualism predominate. Its core insight is this: Without a more thoroughgoing commitment to American history and customs, even the “neutral” methodologies of originalism and textualism risk wrongly dispensing with tradition, allowing individual judges to define their breadth, and isolating the Constitution and statutes from the American people’s principles as revealed over time. Perhaps it’s no coincidence that some conservatives are now looking outside originalism for a judicial philosophy that is less susceptible to contractarian temptations.
But in following our tradition, conservatives need not abandon originalism or textualism. Indeed, Bickel’s tradition-based approach can work in harmony with these methods. As Scalia put it in Rutan v. Republican Party of Illinois, originalism seeks “a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of th[e Supreme] Court.” Bickel’s tradition-based jurisprudence empowers judges to rely on their judgment — as grounded in a deep appreciation for the traditions of the American people — in pursuing those principles, while originalism and textualism ensure that the judicial inquiry is tethered to the law.
Samuel Alito is perhaps the justice who offers the most consistent and methodical incorporation of Bickelian insights into originalism and textualism. His opinions in cases like Bostock, Facebook, Inc. v. Duguid, and Fulton v. City of Philadelphia inquire into the relevant constitutional or statutory provision’s ordinary meaning — as opposed to a meaning isolated from all interpretive evidence except certain technical sources from the time a legal provision was enacted. As he succinctly put it in Bostock:
Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.
Technical interpretive guides like dictionaries, Alito observes, “are not the only source of relevant evidence.” And more so than technical tools, “what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment?” Any authentic search for this original meaning must fully capture and appreciate the traditions and experiences that created that understanding, as well as those in which it manifests over time.
Alito’s incorporation of Bickel’s tradition-based approach is especially apparent in his free-speech decisions. Whereas other originalists and textualists have embraced some of the Warren Court’s absolutism, Alito has provided a distinctive voice for local communities to appropriately reflect their values, address novel phenomena without heavy-handed judicial direction, and properly define the Constitution’s free-speech protection around speech on matters of public concern.
Bickelian insights also appear in several opinions by other justices who are open to a history-based jurisprudence. Take, for example, the dissent of Justice Anthony Kennedy in Melendez-Diaz v. Massachusetts. There, Kennedy (joined by Chief Justice John Roberts, Justice Stephen Breyer, and Justice Alito) objected to the majority’s effort to continue an originalist restoration of the Sixth Amendment’s right of criminal defendants to confront their accuser. The majority’s approach, they argued, privileged “formalistic and wooden rules, divorced from precedent [and] common sense” while risking the “disrupt[ion]” of well-developed criminal procedures. Similar Bickelian insights were incorporated by then-judge Brett Kavanaugh when distilling the Supreme Court’s approaches to separation-of-powers and federalism issues. “History and tradition,” he wrote in PHH Corporation v. Consumer Financial Protection Bureau, “are critical” to resolving separation-of-powers cases “where the constitutional text does not otherwise resolve the matter.” In such instances, “longstanding practice” can be determinative.
Recent Roberts Court decisions that re-anchor the religion clauses in historical practice also demonstrate the consensus achievable with Bickel’s insights. Cases like American Legion v. American Humanist Association, Town of Greece v. Galloway, Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, and Our Lady of Guadalupe School v. Morrissey-Berru all involve justices, Court majorities, and even unanimous decisions explicitly rejecting the “grand unified theor[ies],” “rigid formula[s],” “formal ‘tests,’” and ambitious attempts at neutrality that artificially remove Religion Clause jurisprudence from American tradition and experience. In lieu of formal tests, the Court increasingly looks to the nation’s diverse history and customs to grasp how our foundational commitment to religious freedom manifests. Some of these cases involve public religious symbols — like the Bladensburg Cross in American Legion — or a community’s religious practices, like legislative prayer in Town of Greece. Such symbols and shared practices reflect the diversity of American culture. And they evidence, as Bickel explained, that our attachments to self-government are not the result of everyone embracing the same ideological project, but an ability to live according to realized virtues. This insight transcends the justices’ methodological differences and can resonate with anyone interested in preserving self-government.
The potential unity offered by Bickel’s judicial philosophy resonates from his core point: “Nothing of importance...works well or for long in this country unless widespread consent is gained for it by political means.” This insight led Bickel to eschew interpretive approaches that look primarily for abstract answers to cultural questions. By rooting judicial decisions in the American people’s full tradition — one reflected in our enduring institutions and foundational values — Bickel concluded that the Supreme Court could maximize the ways in which a polity can consent to self-government’s endurance.
Bickel understood that the Supreme Court, being removed from political expedience and able to apply our foundational values to discrete cases, can remind us of what sustains our experiment in self-government. This does not change the fact that it is the people, not the courts, that can choose whether to preserve their right to govern themselves. Bickel’s argument, rather, is akin to that of Madison’s for adopting the Bill of Rights: that appending foundational guarantees to the Constitution could “have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community,” making the articulation of those guarantees in our founding document “one means to control the majority from those acts to which they might be otherwise inclined.”
Early originalists, sharply attuned to the dangers of judicial supremacy, understandably sought to re-assert democratic choice against an overweening Supreme Court. This goal made sense at the time. A virtue of democracy, as G. K. Chesterton explained, is its reminder that we must “not neglect a good man’s opinion, even if he is our groom” (or fellow man). But for an enduring society, the majority’s is not the only opinion that matters; a commitment to democracy must also be accompanied by a commitment to our national traditions. For, as Chesterton continued, “tradition asks us not to neglect a good man’s opinion, even if he is our father.”
Ultimately, a jurisprudence reflective of Bickel’s tradition-based approach would uphold our national memory. A return to Bickel’s scholarship would offer an important window into how we can interpret the law with our memory intact.