New Constitutional Tests Force Courts to 'Play Historian,' Raising Concerns Among Legal Scholars
Recent landmark Supreme Court rulings, including *NYSRPA v. Bruen*, *Kennedy v. Bremerton*, and *Dobbs v. Jackson Women's Health Organization*, have introduced new constitutional tests that require courts to rely heavily on historical analysis. These tests mandate that laws be consistent with the 'Nation's historical tradition' or 'historical practices and understandings.' However, legal scholars Joseph Blocher and Brandon Garrett from Duke Law argue that this approach forces judges, who are not trained historians, to 'play historian' in constitutional adjudication. Justice Sonia Sotomayor, in a 2024 concurring opinion, noted the confusion caused by applying *Bruen*. The Supreme Court has not provided clear guidance on how to conduct this historical fact-finding, including who should do it, how far back to look, or what constitutes a 'tradition.' This lack of clarity creates significant challenges for lower courts and litigants, leading to potential inconsistencies in legal outcomes.
