Louis J. Virelli III (Stetson University College of Law) has posted Constitutional Traditionalism in the Roberts Court on SSRN. Here is the abstract:
The debate over the role of traditionalism in constitutional interpretation has itself become a tradition. It remains a popular and controversial topic among constitutional scholars and presents normative questions that are as divisive, difficult, and important today as at the Founding. Missing from the discussion, however, is a comprehensive account of how the Supreme Court has employed traditionalism - an approach that looks for meaning in present manifestations of longstanding practices or beliefs - in its constitutional jurisprudence. This project is the first to fill this significant gap in the literature by providing an exhaustive and systematic analysis of the Court’s use of constitutional traditionalism. This Article focuses on the Roberts Court’s first five terms to provide an empirical foundation that will not only offer previously unavailable insights into the Court’s current traditionalist practices, but will also set forth a useful framework for the ongoing normative debate over traditionalism.
This project uses content analysis of key terms to identify every instance in which the Roberts Court employed traditionalism to interpret the Constitution. More specifically, this project set out to answer the following three questions: first, how frequently does the Roberts Court employ traditionalism in its constitutional jurisprudence?, second, how robust is the Court’s use of traditionalism (i.e., is it used to interpret a broad or narrow range of constitutional provisions)?, and finally, how often and in what contexts do individual justices on the Roberts Court rely on traditionalism in their own constitutional opinions? The research provided here suggests answers to all three of these questions. First, the data indicate that traditionalism has been relied upon regularly by the Roberts Court, appearing in nearly half of the Court’s constitutional cases. Second, traditionalism is frequently applied to a wide variety of constitutional provisions: two-thirds of the constitutional provisions considered by the Roberts Court were subjected to a traditionalist analysis, and ranged from provisions pertaining to government power and structure to individual rights. Finally, the data show that although traditionalism is used more frequently by conservative justices, it is nevertheless employed by all members of the Court in a wide variety of contexts. Although there is more to learn about traditionalism’s role in the Court’s constitutional jurisprudence, this evidence makes clear that notwithstanding the normative controversy surrounding traditionalism, any future study of the workings of this Court, its members, or of the future direction of constitutional law in general must take traditionalism into account.