The Supreme Court’s Archaeology of Authority
The Bulwark · C · trust 46/100
While the Roberts Court’s favorite new legal test promises objective facts, what it actually delivers is unchecked judicial power.
Eric Scarffe August 6 Upgrade to listen 16 minutes 57 13 (Photo illustration by Bill Kuchman/ The Bulwark | Photos: Getty, Shutterstock) WHEN THE SUPREME COURT CLOSED its most recent term, one lesson stood out: The Court’s most consequential decisions increasingly arrive dressed in the language of history.
Whether the issue is abortion , administrative power , gun regulation , or substantive due process , the justices present themselves less as constitutional decision-makers than as constitutional archaeologists: excavating answers to questions that history supposedly settled long ago.
Yet far from removing values from constitutional adjudication, the use of such history has merely hidden them from view.
The idea that constitutional questions can—and should be—answered via historical analysis is simple enough (and echoes the conservative movement’s longstanding embrace of originalism ). According to this view, judges should not impose their own values on the Constitution or decide cases according to their own moral or political commitments. They should instead look backward: asking whether a right or interpretation of a law is deeply rooted in the nation’s historical practices, language, and traditions.
History, in other words, promises to do what judicial philosophy long has not: remove judgment from judging.
The term just finished reminds us once again how central appeals to “history and tradition” have become to the Roberts Court’s constitutional project. Rather than promoting judicial restraint, however, key cases reveal how the “history and tradition test” has been weaponized to enable one of the most radical revisions to this nation’s constitutional order since the New Deal. It has been used not only to overturn previous decisions and precedent, but also to fundamentally shift the way the Court engages in judicial review.
Take the Court’s Second Amendment decisions as an example. On June 25, 2026, the Court issued its opinion in Wolford v. Lopez , striking down Hawaii’s restrictions on carrying firearms on private property that is open to the public.
Typically, when considering the validity of the Hawaii law, the Court would ask a familiar set of questions. For starters, does the state have a rational basis for regulating the issue in question (the basic question in the rational basis scrutiny test applied to all law)? Taking things a step forward, the Court often then asks whether there is a fundamental right at issue. And, if so, whether the law in question served a compelling government interest (national security, for example) and whether the law was narrowly tailored in service of that interest. This framework of tests does not eliminate judicial judgment, but it does make that judgment explicit. Courts weigh interests, assess evidence, and openly confront competing constitutional values.
In Wolford , however, the Court opted to adopt its new preferred methodology. Under the historical methodology announced in the 2022 decision New York State Rifle & Pistol Association v. Bruen , Hawaii’s law stood or fell on an entirely different basis: whether the state could identify sufficiently analogous restrictions from the nation’s historical tradition of firearm regulation.
To put that in plain language: The question was not whether the law served a compelling governmental (or public) interest. It was whether a sufficiently similar law existed at some point during the nation’s founding.
Notably, the Court has not confined this approach to Second Amendment questions. In Dobbs v. Jackson , for example, the Court did not ask whether abortion restrictions infringed upon choices central to dignity and autonomy. Rather, it asked whether a constitutional right to abortion was deeply rooted in the nation’s history and tradition.
The Court’s answer, of course, was that it was not.
And so the conservative majority concluded not merely that previous courts had struck the wrong balance between reproductive rights and the state’s interest in prenatal life, but that there was no constitutional right to be balanced in the first place .
It’s hard to escape the conclusion that this was not an accident but the very point of employing the test.
The appeal of history as a constitutional methodology is precisely that it promises to transform disputes over values into disputes over facts. Judges no longer need decide difficult moral and political questions. They only have to determine what was historically the case. As Wolford , Bruen , and Dobbs show, that appeal is an utter mirage.
TAKEN CHARITABLY, the effort to resolve questions of constitutional rights without judges simply imposing their own moral and political preferences on the country is a noble one.
That problem is particularly acute when courts are asked to identify rights that do not appear explicitly in the constitutional text. Few constitutional controversies have generated more criticism than the doctrine of substantive due process: the idea that the Fourteenth Amendment protects certain liberties even if they are not specifically enumerated in the Constitution itself.
For critics, such as Justice Scalia , the difficulty was obvious. If judges were free to discover constitutional rights by appealing to broad concepts such as liberty, autonomy, or dignity, what principle prevented courts from constitutionalizing virtually any deeply held preference? Jurists, especially conservative ones, have sought something to delineate those rights, or at least constrain how they may be discerned. The history and tradition test is one such effort.
But what’s perhaps most surprising—and ironic—about the history and tradition test is that the test itself is not “ deeply rooted in the Nation’s history and tradition ” at all. Instead, it emerged in 1997 in Washington v. Glucksberg . 1
The case concerned…
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