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The Time of History and Tradition
Petroski, Karen
Petroski, Karen
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Abstract
In recent terms, the United States Supreme Court has developed a new idiom of justification for its decisions. The justices present history, tradition, and enduring practice as the most powerful forms of support for any legal position and often the only form of support needed. This article calls this idiom “history-and-tradition rhetoric” and agrees with some critics that the idiom is unprincipled by the usual standards of doctrinal coherence. But the idiom is consistent in other ways; history-and-tradition rhetoric is not a new legal doctrine, but a different kind of judicial product.
Fully understanding this rhetoric and its implications requires readjusting our view of how judicial discourse uses history. There is no shortage of recent legal scholarship examining judicial uses of history, but this work has devoted little attention to the specific ways historical narratives structure the relationship among past, present, and future. Part I presents some conceptual tools for identifying the multiple conceptions of time and history that narratives of tradition, like those used in history-and-tradition rhetoric, can reflect and promote. These conceptions were already multiple at the Constitution’s adoption, and new conceptions have developed in the intervening centuries. One of these newer conceptions of time, a “multiverse” conception, is an important element of history-and-tradition rhetoric. Parts II and III support this last point, first reviewing what is (and is not) novel about history-and-tradition rhetoric and then examining the emerging hallmarks of this rhetoric in opinions from the Court’s 2023 term.