William Baude (University of Chicago - Law School) has posted Fear of Balancing (Supreme Court Review (forthcoming 2025)) on SSRN. Here is the abstract:
As a new Supreme Court majority settles into a new era of constitutional adjudication, the Justices will confront important methodological questions. How are they to go about interpreting the Constitution? In the Second Amendment case of United States v. Rahimi, many of the Justices wrote separately to debate broader methodological questions about constitutional interpretation. They expressed a shared desire to turn away from judicial “balancing” of interests in adjudicating constitutional rights in favor of founding-era understandings. That is a healthy instinct, but founding-era understandings may in truth lead to balancing, so maintaining an originalist approach and an opposition to balancing is trickier than it seems. In future cases the Justices may need to resolve this tension by emphasizing the presumption of constitutionality, by making greater use of the principles of general law, or by crafting more rule-like doctrines for adjudication.
