Constitutional Outliers

Abstract

Legal scholars often contend that prominent Supreme Court opinions pret the Constitution in a manner that invalidates outliers—measures found only a small number of states, rather than spread throughout the nation. the term's ubiquity in constitutional conversation, law professors have scant attention to exploring either its conceptual underpinnings or its borders. This paucity of scholarly attention is regrettable because the term come enshrouded in analytical confusion, which severely diminishes its utility instills deep misperceptions about the Supreme Court's role in issuing outlier suppressing opinions.

This Article—the first extended effort to cast a critical eye on the notion constitutional outliers—aims to clarify understanding of the concept by three principal sources of analytical confusion. First, although scholars whelmingly invoke the term "outlier" as though it were a single entity, scrutinizing the Court's outlier-suppressing opinions demonstrates that four distinct are in fact huddled together under the outlier umbrella: holdouts, upstarts, ups, and throwbacks. When the Supreme Court invalidates each type of outlier, eliminates a measure during a specific temporal moment, and conflating moments often conceals their discrete implications for constitutional theory. by identifying and disentangling these outlier variants, it becomes possible appreciate how conventional assessments of outlier-suppressing opinions upon close examination. Contextualizing the Court's outlier-suppressing reveals, contrary to prevalent scholarly assumptions, that they do not reject measures that the nation deems antiquated, backward, and insignificant the constitutional order. Third, because law professors have never explicitly lated their criteria for identifying what constitutes an outlier, the term legal scholarship in inconsistent and even contradictory fashions, as minded theorists disagree whether some of the Court's most celebrated even fit within the outlier rubric. In an effort to foster increased coherence term's usage, this Article provides specific guidelines for guidelines for distinguishing from nonoutliers and identifies instances in which scholars have used the appositely. Bringing outliers to the very center of scholarly inquiry recasts understandings of critical constitutional opinions—and the institution that issued them.