The Supreme Court’s Archaeology of Authority
While the Roberts Court’s favorite new legal test promises objective facts, what it actually delivers is unchecked judicial power.
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 physician-assisted suicide. Several terminally ill patients, physicians, and advocacy groups argued that Washington state’s prohibition on physician-assisted suicide violated the Due Process Clause of the Fourteenth Amendment.
The Court disagreed.
Writing for the majority, the conservative Chief Justice William Rehnquist acknowledged that substantive due process had long protected certain unenumerated rights involving marriage, childrearing, and family relationships. But if courts were to continue recognizing such rights, he argued, they required a more disciplined methodology. His answer was history.
Courts, according to Rehnquist, should exercise the “utmost care” before recognizing new substantive rights. And those rights should only receive constitutional protection if they were “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
THIS DID NOT APPEAR at the time to be a constitutional revolution.
Indeed, Glucksberg was widely understood as an exercise in judicial restraint, a key aim of Rehnquist’s stewardship of the Court. In this case, the Court was attempting to limit substantive due process rather than expand it—to constrain judges rather than empower them. History was being offered as a limiting principle for one particularly controversial corner of constitutional law, not a general theory of constitutional interpretation.
And for years, that is largely where it remained.
The Court continued to employ balancing tests, tiers of scrutiny, and means-ends analysis across much of constitutional law. Questions involving speech, religion, equal protection, and criminal procedure generally turned on contemporary governmental interests and the burdens imposed on constitutional rights rather than historical analogies.
Even substantive due process itself proved resistant to Glucksberg’s limiting logic.
In 2003, for example, the Court invalidated laws criminalizing same-sex intimacy in Lawrence v. Texas, despite an extensive historical tradition of prohibiting such conduct. Similarly, in 2015, the Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges, again despite the obvious absence of any deeply rooted historical tradition protecting it.
Justice Anthony Kennedy’s opinions in those cases spoke the language of dignity, autonomy, and evolving understandings of liberty rather than historical pedigree.
THEN CAME DOBBS, which did not simply overrule Roe: It resurrected Glucksberg.
The Court decided the question at issue was not whether abortion restrictions represented unwarranted government interference in choices central to personal dignity and autonomy, but whether a right to abortion was deeply rooted in the nation’s history and traditions.
Of course, if we focus narrowly on Dobbs, it seems plausible that you could tell a Rehnquist-inspired story that draws a line between Glucksberg and the decision to overturn Roe v. Wade—a longstanding aim of the conservative legal movement—while keeping the scope of the history and tradition test narrowly cabined to cases of particular significance.
But, as evinced by this past Supreme Court term, Dobbs marked the migration of this logic to other issue areas.
For example, during the same 2021–22 term, the Bruen decision imported a remarkably similar methodology into its Second Amendment jurisprudence. For decades, courts evaluating gun regulations had applied familiar forms of constitutional scrutiny, balancing governmental interests in public safety against burdens imposed on the right to bear arms. Bruen rejected that approach.
Instead, Bruen now insisted that the relevant test that courts must apply is whether modern gun regulations were consistent with the nation’s historical tradition of firearm regulation. The resemblance to Glucksberg was unmistakable. And a methodology designed in the 1990s to constrain substantive due process had become a constitutional method capable of traveling across doctrinal boundaries.
THIS BRINGS US BACK TO WOLFORD.
Recall that the issue before the Court here was not physician-assisted suicide or abortion or unenumerated rights, the questions on which this reasoning had been drawn previously. It was whether Hawaii could prohibit firearms on private property open to the public absent affirmative consent from the property owner.
And yet the Court decided the question at stake was not whether the state had a compelling state interest (it did). Nor was it whether the law was narrowly tailored in service of that interest (and there’s a good argument that it was). Instead, the question the Court took up in its opinion was, once again, whether a sufficiently analogous law was deeply rooted in the nation’s history and tradition.
What we’ve seen on full display this term is that a test born as a narrow limitation on substantive due process is coming precariously close to a general theory of constitutional interpretation.
There is irony, of course, in pointing out that the “history and tradition” test itself is not deeply rooted in this nation’s history and tradition. And that, like originalism before it, it appears to work as a theory of general jurisprudence only if you avert your eyes to its internal contradictions.
FOR EXAMPLE, the history and tradition test was supposed to solve the problem of judicial discretion. But historical analysis turns out to require many of the same judgments the test was designed to avoid:
Which historical period matters: 1787, 1791 or 1868? (As an example of historical periods mattering in constitutional reasoning, see Justice Kavanaugh’s concurring opinion in Trump v. Barbara.)
What’s the relevant threshold for something to be considered a historical practice? (Is it the practices and norms of a family, community, state, or some necessary number of states?)
Should courts look for regulations addressing the precise practice at issue, or merely analogous concerns? And how similar must an analogy be before it counts?
The answers to each of these questions can determine the outcome of a case. Consider Dobbs. The Court asked whether there was a deeply rooted historical tradition protecting abortion rights. The answer was no. But one could imagine asking a different question: Was there a deeply rooted historical tradition protecting bodily integrity? What about personal autonomy? Or intimate decision-making?
At that level of generality, the historical record begins to look very different, and the reasons to prefer one way of framing the question over another are a matter of judgment, not historical facts.
The same problem appears in Second Amendment cases. A court might ask whether there existed historical traditions of prohibiting firearms in locations where large numbers of people gathered. Or it might ask whether there existed historical traditions prohibiting the carrying of ordinary firearms by law-abiding citizens. Neither question is dictated by history itself. The judge must decide which question history is being asked to answer.
Of course, this does not deny that history and tradition have an important role to play in constitutional interpretation. Few serious theories of jurisprudence deny that. But history does not eliminate constitutional judgment so much as relocate it. The Roberts Court’s sleight of hand is in its pretense of transforming constitutional conflict and disagreement over values into disagreement over facts. As made plain by this past term, the justices in the conservative majority feel no compulsion to maintain the aura of consistency in achieving these ends. Their opinions float freely between different approaches and positions (sometimes even in opinions issued the same day) and leverage the history and tradition test if—and only if—it produces their preferred outcomes.
BUT SO WHAT?
First, if we take the history and tradition test to its logical conclusion, more than just abortion rights are at stake. Indeed, it seems unlikely that you would find deeply rooted in this nation’s history rights to the use of contraceptives, gay marriage, interracial marriage, or even the idea that rights articulated in the Constitution place limits on state governments (as opposed to just the federal government).
Indeed, Justice Clarence Thomas has acknowledged this to be the logical outcome of this reasoning in a plethora of concurring and dissenting opinions. More surprisingly, however, we have also seen the Court adopt positions previously considered to be held only by the most strident in the conservative legal movement at a blistering pace. Consider, for example, Chief Justice John Roberts’s breathtakingly quick reversal on Section 2 of the Voting Rights Act, which he defended in Allen v. Mulligan (2023) before abruptly reversing course in Louisiana v. Callais (2026). There is also the Court’s increasingly warm embrace of unitary executive theory in Trump v. Slaughter.
Second, and perhaps most troublingly, the history and tradition test is no longer being used for the Court to proceed with trepidation on so-called unenumerated rights (such as abortion or physician-assisted suicide). Rather, it is now being used to declare unconstitutional laws passed by the federal (e.g., the Voting Rights Act) or state governments (e.g., Hawaii’s gun legislation).
Far from being a tool to let states decide for themselves, this past term the history and tradition test has morphed into a tool for the conservative majority to overturn progressive precedent and progressive legislation. The Court, in short, is making perhaps its strongest case to date for the need for its reform, should Democrats take back the House this fall—for if the Court now claims authority to strike down any legislation that does not fit its politics, there appear to be few other choices left.
Glucksberg itself, of course, says this test is grounded in a combination of Moore v. East Cleveland (1977) and Reno v. Flores (1993). But the fact that Justice Rehnquist relies on a combination of cases to derive the relevant parts of its purported “test” undercuts its claim that the test itself is “deeply rooted” in the history of the Court’s jurisprudence.
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