Thomas Nielsen (Harvard University, Harvard Law School) has posted The Presumption Against Novelty in the Roberts Court's Separation-of-Powers Caselaw (Harvard Law Review, Vol. 137, No. 7, p. 2034, 2024) on SSRN. Here is the abstract:
In 2017, Professor Leah Litman warned that the Supreme Court was increasingly “promot[ing] the idea that legislative novelty [was] a mark against a law’s constitutionality.” This “antinovelty rhetoric” appears in the Court’s anticommandeering and sovereign immunity cases from the 1990s, but the Court did not openly cite novelty as a sign that a statute violated the Constitution’s separation of powers until 2010. Since then, however, the Court has deployed antinovelty language with increasing frequency in cases touching all three branches of the federal government, a mode of interpretation that might be termed “Burkean minimalism.” After contrasting Burkean minimalism with the originalism the Roberts Court has recently applied in several high-profile constitutional rights cases, this Note traces and critiques the operation of the presumption against novelty in the Court’s recent separation-of-powers decisions. It ultimately concludes that the presumption against novelty produces results that are themselves quite novel, and in so doing expands judicial discretion — and judicial power — at the expense of the democratic process.
Highly recommended.
