Kavanaugh, Rahimi, and the Effort to Legitimate Originalism

Introduction

United States v. Rahimi provides a new sign of whether the current Supreme Court’s conservative majority can be persuaded to dial back the ambitions of its originalist constitutional project.¹ Chief Justice John Roberts’ Rahimi opinion makes the prospect seem possible when it rejects a far-reaching, conservative originalist interpretation of the Second Amendment that would have checked federal authority to disarm domestic abusers subject to certain state domestic violence restraining orders.² This is Rahimi’s primary face. It is significant practically and symbolically for domestic violence victims and survivors and others whose gun rights and whose safety the decision affects.³

Rahimi, however, has an important second face that complicates its dominant symbolism and diminishes any hope that the Court is open to seriously scaling back its originalist project. Justice Brett Kavanaugh’s Rahimi concurrence—which essays originalism while attempting to secure the primacy of Kavanaugh’s preferred originalist approach, focused on history and tradition when the Constitution’s text is ambiguous—shows that Rahimi is also bound up with preparations to continue and expand the Court’s ongoing originalist work.⁴ Kavanaugh’s concurrence defends his preferred brand of originalism by propounding its legal bona fides, and thus tying it to American legal authority from the past. Shoring up history-and-tradition originalism’s legal foundations this way, Kavanaugh’s concurrence leverages the methodology’s newly enhanced authority to identify and target established pillars of the modern American constitutional order.⁵

In time, Rahimi’s second face—reflecting views of the Court’s erstwhile swing Justice that are also appealing to other Justices and some lower court judges—may overtake the first face as the measure of Rahimi’s meaning.⁶ The Court’s seemingly chastened originalism—hard to credit overmuch, given the issues that the Rahimi majority opinion does not reach and other developments in the same Term—may prove less context than costume.⁷ Rahimi’s larger and more enduring significance may thus ultimately lie in the plans developed within it, in Kavanaugh’s concurrence, to wield a newly fortified history-and-tradition originalism as a battleaxe amidst the Court’s conservative originalist constitutional revolution. Ample litigation vehicles already exist for testing these propositions and starting to fulfill their promises. So it may soon become clearer how, and how seriously, to take the prospects that Kavanaugh’s Rahimi concurrence raises.⁸

First, in Part I, some stage setting. Then, in Part II, engagement with Kavanaugh’s concurrence, followed by concluding reflections on the developments.

I. Context

Chief Justice John Roberts’ majority opinion in Rahimi, an 8–1 ruling that further breaks 5–1 among the Court’s conservatives, initially overshadows Kavanaugh’s concurrence in the case. The Roberts majority opinion rejects Zackey Rahimi’s Second Amendment challenge to his conviction under a federal law that prohibits persons like him, subject to a domestic violence restraining order, from possessing a gun.⁹ Rahimi’s Second Amendment arguments—credited by the Fifth Circuit—followed from New York State Pistol & Rifle Association v. Bruen, the then-latest Supreme Court Second Amendment ruling most directly governing Rahimi’s case.¹⁰

Before Rahimi, Bruen had quickly become notorious as a conservative originalist ruling setting a new high-water mark for an aggressive originalism founded in history’s strict teachings—what Bruen somewhat fuzzily called “historical tradition.”¹¹ Glossing Bruen, the Fifth Circuit toppled Rahimi’s conviction and held that the federal gun ban in issue was not part of the relevant “historical tradition” of lawful gun regulation.¹² This ruling intensified concerns already heightened after Dobbs v. Jackson Women’s Health Organization that the Court’s originalist project poses serious threats to women’s rights.¹³

Roberts’ Rahimi opinion reverses the Firth Circuit, declaring that its positions, like Rahimi’s arguments, misunderstand Bruen.¹⁴ Purporting to clarify Bruen—while actually re-writing it—Rahimi presents Bruen’s Second Amendment demands in a softer light. Rahimi converts Bruen’s strict historicist originalism into a looser historicized search for principles and values to guide the Court’s investigation of whether historical regulations recommend by analogy upholding gun laws today.¹⁵ This is a new and somewhat more liberalized, if hardly liberal, originalist understanding, compared to Bruen’s approach to Second Amendment meaning-making.¹⁶ Significantly, if seemingly in passing, Rahimi cross-indexes its historicist inquiry, repeatedly keyed to ideas of “tradition,” to present-day American “common sense.”¹⁷ Rahimi thereby implies, without expressly declaring, that its originalism is not fully independent of contemporary American public norms, themselves still powerfully sympathetic to laws protecting domestic abuse victims’ interests.¹⁸ Rahimi’s own interest in “common sense” reflects a realpolitik understanding by the Court of what crediting Rahimi’s claims would have meant for its institutional legitimacy. Sustaining those claims would have required the Court to sacrifice domestic abuse victims on originalism’s altar.¹⁹ Throwing that caution to the wind, Justice Clarence Thomas, Bruen’s author and Rahimi’s lone dissenter, protests the Court’s Bruen dilution.²⁰ Agreeing with the Fifth Circuit and Rahimi himself, Thomas’ dissent details the easy hash Bruen may be used to make of the historically novel federal gun regulation in the case, declaring it unconstitutional on Second Amendment grounds.²¹

Between the majority’s relaxation of Bruen’s more exacting historicist originalism and the dissent’s failed effort to preserve and extend it, Rahimi muddies originalism’s methodological waters. It suggests the pliability of post-Bruen, and now post-Rahimi, originalist decision-making in Second Amendment cases, if not more generally. Concurrences by the three first-term, Trump-appointed Justices further highlight this uncertainty as they seek to dispel it in opinions that indicate what these Justices take originalism’s present and future to be. The concurrences publicize intra-Court disputes that, in some ways, rehearse fissures in scholastic originalism.²²

Kavanaugh’s is arguably the most practically significant of the conservatives’ Rahimi concurrences, owing to Kavanaugh’s role as erstwhile swing-vote Justice, including in high-profile cases claiming an originalist mantle.²³ Kavanaugh’s Rahimi concurrence elaborates and defends his preferred brand of originalist inquiry, which ventures that, when the Constitution’s meaning is not plain, the Court should look to history and tradition as normative sources of judgment for “discovering” the original public meaning of the text.²⁴ At the same time, Kavanaugh’s concurrence also stakes out new claims of authority for this history-and-tradition originalism while identifying next-generation targets for its judicial work.

Recognizing the practical significance of Kavanaugh’s views, critics from across the political and ideological spectrum have homed in on his Rahimi concurrence’s perceived deficits.²⁵ However understandable, sensible, and apt some, or many, of these critiques may be, they broadly skate past the excess of meaning in the concurrence’s tally of history-and-tradition originalism. Beyond its most immediate terms, the Kavanaugh concurrence develops a case for history-and-tradition originalism that, carefully parsed, depicts the approach as possessing sound legal credentials emerging from its relationship to past constitutional authority, including legal decisions. These connections have also sometimes been overlooked in the Court’s recent originalist work.

Critiques aside, Kavanaugh’s Rahimi concurrence’s attempt to shore up originalism’s legal foundations arrives at an opportune moment. Until now, the Court’s originalist decision-making, particularly its history-and-tradition version, has regularly and heavily relied on the authority of Washington v. Glucksberg, the 1997 case that rejected the right of terminally ill patients to end their lives by physician-assisted suicide.²⁶ Glucksberg has repeatedly been the basis for decisions claiming that the Court’s new originalist rulings are following an established originalist method, not weaving one out of whole cloth.²⁷

The Court’s repeated turns to Glucksberg as warrant for originalist decision-making began showing signs of strain before Rahimi arrived.²⁸ The Court’s Second Amendment incorporation ruling in McDonald v. City of Chicago exposes one aspect of the problem.²⁹ Fourteenth Amendment substantive due process precedents like Glucksberg may only be stretched so far into other doctrinal settings before their textually nested logics—and thus their legal force—peter out. The grander the Court’s originalist project, and the more originalism widens its operative ambit, the more necessary it is for the Court to find sturdier authority—if the Court’s originalist rulings are not to constitute their own foundation, making them vulnerable to later attack and reversal on grounds of their underlying lawlessness.³⁰

The problems with relying on Glucksberg in these ways runs even deeper.³¹ The issue is not the Court’s selective application of the so-called Glucksberg test in cases like Dobbs, which maintains the test only applies to abortion and no other substantive due process rights.³² More basically, Glucksberg’s own original meaning indicates that the Glucksberg decision did not announce or follow the authoritative history-and-tradition test that recent Court decisions have insisted—and which they need Glucksberg to have done—to underwrite their own legality.³³ As many of Glucksberg’s readers have recognized over time, Glucksberg’s actual method of decision consults not only history and tradition but also—vitally—contemporary views, values, and practices.³⁴ In this and other ways, Glucksberg is no simple history-and-tradition decision, but a complex, if conservatively inclined, living constitutionalist ruling.³⁵ In context, Glucksberg’s so-called history-and-tradition test was, at best, aspirational, doctrinal seed-sowing for later decisions to build upon—not a comprehensive, full-blown majority-opinion authoritatively declaring a conservative originalist method for later opinions to invoke and mechanically follow.³⁶

Without anywhere acknowledging Glucksberg’s deficits—indeed, in some ways re-implicating them—Kavanaugh’s Rahimi concurrence moves in deficit-easing directions as it imagines continuing the Court’s conservative originalist work. Seen in terms of the ideas that it generates, the concurrence’s positions suggest that future Court decisions may not need to rely so exclusively or heavily on Glucksberg’s authority for history-and-tradition originalist decision-making. As the concurrence champions history-and-tradition originalism, it identifies alternative constitutional foundations for it that are now ready to underwrite and shape its future deployments.

II. Kavanaugh’s Rahimi Text

Kavanaugh’s Rahimi concurrence touts a simple, old-school conservative originalist method: To discover the Constitution’s meaning, the Court must first consult the Constitution’s text, and then, if the text is unclear by some measure, consider the nation’s history and tradition.³⁷

This originalist test’s credentials have been questioned not only by liberal critics, but also by some originalists themselves, policing “originalism” as it has grown in power.³⁸ Originalist critics of the history-and-tradition approach—strikingly represented in Rahimi from different directions by Justice Clarence Thomas’ dissent and Justice Amy Coney Barrett’s concurrence—are intent on an ostensibly purer originalism that is suspicious of “tradition,” what Kavanaugh’s concurrence calls “post-ratification history,” as a source of original meaning.³⁹ One basic version of the critique posits that “tradition” in its “post-ratification” forms can implicate temporalities and details too after-the-fact to “illuminate[] the meaning of the enacted law” in a useful way.⁴⁰ However important as a tool, “generally speaking, the use of post-enactment history requires some justification other than originalism simpliciter.”⁴¹ Only historical inquiry—mainly contemporaneous views illuminating original public understanding, though sometimes also pre-enactment history providing context, background, and understanding—properly reveals original meaning.

Kavanaugh’s Rahimi concurrence, by contrast, defends the history-and-tradition approach as valid originalism, or, as the concurrence puts it, a way to “determine the [original] public understanding.”⁴² Kavanaugh’s concurrence expresses deep confidence that post-enactment history is ‌relevant and can properly illuminate the originalist undertaking in the case.

The strength of Kavanaugh’s concurrence’s position is less in its reflection of ideal originalist theory than the demands of judicial practicality.⁴³ The concurrence defends its history-and-tradition originalism chiefly via appeals to Court-centered legal authority. The concurrence mounts its defense of history-and-tradition originalism amidst a larger cluster of arguments that gives Justice Antonin Scalia’s authority pride of place inside a genealogy of history-and-tradition originalism that traces the methodology to the founding era. Thus, the concurrence proposes that James Madison, in Federalist No. 37, took a position establishing early-Republic support for today’s history-and-tradition originalism.⁴⁴ Summarizing, the concurrence observes: “Madison articulated the Framers’ expectation and intent that post-ratification history would be a proper and important tool to help constitutional interpreters determine the meaning of vague constitutional text. From early on, this Court followed Madison’s lead.”⁴⁵ Bearing the point out, the Kavanaugh concurrence describes Chief Justice John Marshall later taking up the same argument in McCulloch v. Maryland when considering Congress’ authority to establish a national bank.⁴⁶

Describing Madison and Marshall as a “formidable duo” buttressing the concurrence’s position “relying on post-ratification history as a proper tool to discern constitutional meaning,” the Kavanaugh concurrence quickly adds Scalia to the mix, thereby imbuing his more recent views with distinctive legal significance.⁴⁷ Joining Scalia’s judicial authority with Madison’s and Marshall’s, Kavanaugh’s concurrence proudly embraces Scalia’s history-and-tradition originalism against the more purist historicist originalist alternatives found in other Rahimi opinions.⁴⁸ The formal takeaway—seemingly less aimed at persuading an un-doubting Thomas than at overcoming the views of Barrett, Scalia’s former clerk—is that dutiful originalists should heed Madison’s, Marshall’s, and especially Scalia’s authority and his originalist history-and-tradition method, in their shared judicial work.

The concurrence’s elevation of Scalia to the American judicial pantheon has struck many readers as hagiographic.⁴⁹ Having transformed the original heroic duo into a veritable legal triumvirate, Kavanaugh’s concurrence can refer to “Madison, Marshall, and Scalia” as the “leading actors and theorists in the earliest and latest chapters of the American constitutional story.”⁵⁰

The filial piety may initially sound like mere hero worship, but it actually comprises multiple jurisprudential bids.⁵¹ Most immediately, it ventures its point on history-and-tradition originalist method, insisting that Scalia stands with Kavanaugh—not Thomas or Barrett—and, therefore, that Kavanaugh’s concurrence is correct about what the proper originalist inquiry should be.⁵²

This narrow point, however, contours another that has been widely missed. If originalism is the prevailing constitutional interpretive method, one that Scalia’s history-and-tradition approach properly governs, then Scalia’s opinions voicing this approach possess commanding constitutional significance. The concurrence’s grand narrative about originalism’s genealogy independently dovetails this view, coloring it in. Framing Scalia’s history-and-tradition originalism and the opinions expressing it as leading aspects of the “latest chapter[] of the American constitutional story,” Kavanaugh’s concurrence suggests that Scalia’s originalist method and opinions should be afforded outsized, and unusually authoritative, legal weight as the American constitutional story proceeds.⁵³

When Kavanaugh’s concurrence recasts the Madison-Marshall duo into the Madison-Marshall-Scalia triumvirate, it practically supercharges Scalia’s originalist majority opinions, including Scalia’s Second Amendment opinion in District of Columbia v. Heller, into super-precedents.⁵⁴ Along this sightline, it may be that the Second Amendment really is conditioned by a history-and-tradition test, as Kavanaugh’s concurrence elsewhere suggests, and as Roberts’ Rahimi opinion confirms when it punctuates its historically-focused inquiry into the Second Amendment’s meaning with talk of “tradition.”⁵⁵

Perhaps more vitally, the concurrence intimates that Scalia’s concurrences and dissents, even his lone dissents, likewise carry and convey their own outsized authoritative weight.⁵⁶ Giving these opinions their legal due may, accordingly, require that they be treated by the Court as meeting or exceeding the full load-bearing weight of official Supreme Court majority opinions that technically surpass them in jurisprudential significance.⁵⁷

Kavanaugh’s Rahimi concurrence effectively portrays Scalia as the very model of a modern, conservative successor to the “great dissenter,” Justice Oliver Wendell Holmes.⁵⁸ Holmes’ living constitutionalist views naturally mean he is unlikely to appear on Kavanaugh’s list of Great Justices, like Marshall and Scalia—and he does not. Holmes is not only excluded from the concurrence’s short list of Great Justices, but also another longer list that the opinion supplies, mentioning other very, very good Justices.⁵⁹ From the modern era, this list includes Chief Justice William Rehnquist, and Justices Sandra Day O’Connor, Anthony Kennedy, and, evidently, for good measure, Scalia, again.⁶⁰

Whatever Kavanaugh’s views, Holmes’ famous dissents—such as in Lochner, on contract liberty, and Abrams, on free speech—are widely recalled today as distinctively authoritative even in defeat.⁶¹ Retrospectively, these Holmes dissents are commonly regarded as having been fully authoritative from the start, even before that authority formally ripened through the Court’s adoption of Holmes’ positions as its own.⁶² Until then, Holmes’ dissents were prophetic rulings, majority-opinions-in-waiting, requiring only time and a better appreciation for Holmes’ wisdom and the strength of his reasoning to realize their destiny. In themselves, they set the Court’s own future path for the law.

That, basically, is the perspective that Kavanaugh’s Rahimi concurrence suggests it is taking with Scalia and his separate opinions. Their originalist method, reasoning, and positions—articulated in the days when originalism was in the legal wilderness—are now ripening. Their prophesying is now being heard, increasingly followed, and translated into authoritative positions of the Court. The translational work is strictly for the Justices to do—lower courts should not try this at home—but Scalia’s originalist opinions, which Kavanaugh’s Rahimi concurrence gathers, are gaining steam.⁶³ They are now increasingly primed to defeat the non-originalist positions that once defeated them.

* * *

Some of these dynamics have already been playing out without meta-commentary in recent Supreme Court decisions. Dobbs is one prominent instance in which the dynamics figure on multiple levels. Beyond vindicating Scalia’s originalist views on Roe v. Wade and abortion rights, Dobbs aligns‌ itself with Scalia’s lone dissent in United States v. Virginia.⁶⁴ That dissent questioned, from originalist history-and-tradition premises, whether modern Fourteenth Amendment sex equality protections should persist or be returned to their historical and traditional baselines from around and for some considerable time after the Amendment’s enactment.⁶⁵ Less obvious is Dobbs’ claimed reliance on Glucksberg. Given Glucksberg’s own original meaning, it may be more sensible to defend Dobbs as following the lead of Scalia’s Michael H. v. Gerald D. opinion. In a well-known footnote, speaking only for himself and Chief Justice William Rehnquist, Scalia’s Michael H. decision sketched a conservative originalist, history-and-tradition method for apprehending Fourteenth Amendment substantive due process rights—one that Glucksberg later gestured towards, notably without citation to Michael H., but in the seed-sowing manner that it did.⁶⁶

With Kavanaugh’s Rahimi concurrence insisting on honoring Scalia’s legal authority, it may no longer be necessary, much less advisable, for the Court to keep returning to Glucksberg’s dry well to try justifying history-and-tradition originalist approaches to constitutional interpretation. Citations to Glucksberg may persist in future cases deploying history-and-tradition analyses. After Rahimi, however, those Glucksberg citations may be seen as functionally interchangeable with citations directly to Scalia opinions like Michael H., which, in the view of Kavanaugh’s concurrence, possesses much greater authority than the opinion of two Justices alone ordinarily would. Similar reliance may thus now be placed on other Scalia opinions in the list that the concurrence supplies to substantiate its view that “[t]he U.S. Reports are well stocked with Scalia opinions looking to post-ratification history and tradition.”⁶⁷

These various Scalia opinions may be consulted or transformed into new Supreme Court majority rulings. But in either event, the collection of Scalia decisions in Kavanaugh’s concurrence, taken alongside other founding-era history-and-tradition rulings in a different list that the concurrence supplies, amounts to a new conservative originalist bedrock.⁶⁸ On it, consistent with Kavanaugh’s concurrence’s conviction, the Court may now begin more confidently building in the next phase of its history-and-tradition work.⁶⁹

After the Kavanaugh concurrence’s yeoman’s effort to reveal the bedrock and to affirm its unassailability, who could possibly reasonably think that history-and-tradition originalism is a lawless undertaking of the current Court’s own devising? Or that it is merely an exercise of today’s Justices’ power—or their will?

The Kavanaugh concurrence does not elaborate the pregnant negative implications of this position for the more strictly historicist originalism currently favored by other conservative originalist Justices and many originalists off the Court. Kavanaugh’s concurrence does not simply reject the strict historicist brand of originalism, but effectively makes it a sacrificial lamb. Kavanaugh’s Rahimi concurrence subtly but unmistakably casts non-Scalian and non-history-and-tradition originalisms—whatever their theoretical strengths—as unable to make the same claims to established law-bound judicial practice that history-and-tradition originalism can. The stricter historicist originalism that Thomas and Barrett advocate in Rahimi, and that many others also prefer, cannot properly help itself to the legal bona fides that Scalian history-and-tradition originalism possesses. Historicist originalist approaches to constitutional interpretation thus suffer a flaw that many of originalism’s left-liberal critics believe beset all conservative originalisms: They lack foundational jurisprudential supports.

Bruen was the leading recent case in which a strict historicist originalism appeared on some level to have captured the Court. Bruen might thus have served to establish a prominent beachhead for subsequent historicist-originalist decisions.

Roberts’ Rahimi opinion, however, dashes those hopes. Bruen is no longer the strict historicist-originalist authority that it may have momentarily seemed to be. Rahimi softens Bruen’s historicism into a more flexible expression about the lessons to be drawn from the American “historical tradition,” an inquiry that Rahimi indicates is, at least sometimes, properly cross-indexed to present-day American “common sense” and concerns over the Court’s institutional legitimacy.⁷⁰

On these terms, particularly coupled with the Kavanaugh concurrence’s tacit insistence that it conforms to Scalian history-and-tradition originalism, Bruen is no longer available as the cornerstone for the kind of legacy-building work that Thomas, Bruen’s author, appears to have intended for it.⁷¹This conclusion helps to explain the intensity of Thomas’ Rahimi dissent and its rejection of the Rahimi Court’s abandonment of the letter and spirit of his Bruen handiwork.⁷²

Properly understood, Kavanaugh’s Rahimi concurrence points to arguments that historicist-originalist practices are broadly unmoored from the larger field of Supreme Court precedent. They remain vulnerable, therefore, to claims of lawlessness, from which Kavanaugh’s Rahimi concurrence has tried saving its preferred Scalian history-and-tradition originalism. Apparently presuming the success of the effort, Kavanaugh’s concurrence elsewhere prepares future battlegrounds, identifying targets for its originalist project.

* * *

Having freshly anchored its history-and-tradition originalism to past Supreme Court decisions—including, notably, Scalia’s jurisprudence—Kavanaugh’s Rahimi concurrence targets two large pillars of the American legal order.⁷³ But for the foundation-claiming work that the concurrence has done, the challenges would almost certainly remain beyond reach. Now, they may be immanent developments authorized and potentially underwritten by a history and tradition of history-and-tradition jurisprudence.⁷⁴ Saying this does not approve the concurrence’s outlook, but only figures how its ideas line up.

A step in these directions begins by recognizing that amidst its work of reclaiming history-and-tradition originalism’s legal lineage, Kavanaugh’s concurrence purports to demonstrate how this methodology is broadly consistent with classic rule-of-law values and sensibilities like objectivity and determinacy.⁷⁵ In its way, the concurrence indicates that these rule-of-law values and sensibilities should both drive and circumscribe judicial decision-making, including and perhaps especially in the constitutional realm.⁷⁶ Kavanaugh’s concurrence predictably pats its history-and-tradition originalism on the back for aiding the Court in standing guard against the impulses to judicial policymaking and rule by interest balancing.⁷⁷ Those are indulgences that unnamed “proponents of a policy-based approach to interpretation of broadly worded or vague constitutional text” would succumb to, but not Kavanaugh or other law-abiding originalists.⁷⁸

Kavanaugh’s concurrence squares this thinking with its originalist brief against modern constitutional analyses that employ “means-end” judicial inquiries.⁷⁹ The concurrence figures the origins of these inquiries in the mid-twentieth century.⁸⁰ Its originalist outlook proffers a wall-to-wall questioning of “means-end” review, a basic and trans-substantive feature of modern American constitutional law for at least the better part of a century.⁸¹

Broadsides like this are familiar stuff among academics. In academic circles, plays like this code as “big ideas” interrogating the developed and developing foundations of American law and its institutions. The potential uptake of these big ideas—with their tectonic shifts and vast, system altering, and potentially destabilizing effects—has generally kept Supreme Court Justices, especially at or near the Court’s center, from pursuing them in their official pronouncements.⁸² The Kavanaugh concurrence teaches: That was then, this is now.

Utterly conventional, indeed, constitutionally axiomatic, means-end analyses go by different names in Kavanaugh’s Rahimi concurrence: “means-end scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite, or strict or intermediate or intermediate-plus or rigorous or skeptical scrutiny.”⁸³ Whatever their proper name, these means-end analytics have historically and traditionally been understood to manifest appropriate forms of relative judicial deference or skepticism applicable in concrete cases. Which precise version is triggered depends on how the cases are potted in constitutional text. Across the standard range of settings, means-end review has not ordinarily been understood to involve, or anyway, is not ordinarily defended as involving, open-ended balancing or free-form policymaking. The official account, rather, has invariably been that means-end review, such as it is, involves rational, bounded judicial decision-making that is responsive to constitutional terms, values, ideas, and interests.⁸⁴ The notion, in short, is that “it is a constitution” the Court has been expounding.⁸⁵

Kavanaugh’s concurrence charges that the various means-end judicial analyses are non-originalist devices unsupported by the Constitution’s text or original meaning.⁸⁶ In form and substance, the concurrence maintains that the analytics enable, while papering over, judicial decision-making based on raw, first-order political preferences.⁸⁷ Continuing, the concurrence ventures that the resulting constitutional decisions cannot claim proper—meaning: originalist—constitutional grounding.⁸⁸ The concurrence summarizes its view by observing:

[T]hat kind of balancing approach to constitutional interpretation departs from what Framers such as Madison stated, what jurists such as Marshall and Scalia did, [and] what judges as umpires should strive to do[.] . . . The balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking. The “tiers of scrutiny have no basis in the text or original meaning of the Constitution.”⁸⁹

One may fairly wonder about where the concurrence’s support for “tradition” has gone here. Perhaps it has been subsumed within the reference to “original meaning.” But one could also wonder whether the concurrence’s periodization may be blinkered to a longer history discoverable in the Court’s earlier practices of judicial review, including the fin-de-siecle era of laissez-faire economic liberty in American constitutional law.⁹⁰

As Kavanaugh’s Rahimi concurrence proceeds, it suggests that the non-originalist, means-end grafts onto the Constitution’s text are at odds with the objective discovery and faithful application of the Constitution’s original meaning.⁹¹ The concurrence acknowledges that calling out means-end review like this is a notable undertaking. Certainly, it crosses the usual academic-judicial blood-brain barrier.⁹² However characterized, the concurrence reflects an understanding that its principles throw major swaths of the Court’s constitutional work from the last century into doubt. Yesterday rock solid, not subject to serious question by the Court, today, the Court’s erstwhile swing-vote Justice has written an opinion implying that means-end review lacks any basis in the Constitution’s text or original meaning. The result, conceptually speaking, is to place the Court’s decisions deploying means-end review into a virtual constitutional free float.

The Kavanaugh concurrence’s articulation of this position supplies a rationale for re-reviewing every decision relying on this sort of constitutional “balancing” or “policymaking.” This includes all the decisions formally deploying heightened standards of judicial review, as well, presumably, as decisions based in practices of judicial statecraft and prudence that, in originalist terms, lack constitutional bearing, appearing as ultra vires balancing or policymaking, too.⁹³ The concurrence suggests that it is launching this challenge partly in Scalia’s name—this “balancing . . . departs from what . . . jurists such as . . . Scalia did”—but, carefully parsed, the concurrence never indicates that Scalia went, or would have gone, so far as to portray all the Court’s means-end scrutiny decisions as lawless.⁹⁴

Kavanaugh’s concurrence recognizes the implications, including the litigation green light it flashes, as it proceeds to withdraw from its own scaled possibilities. The concurrence’s impulses of self-disavowal resonate with rule-of-law values, including judicial modesty, restraint, legal continuity, respect for settled law, and a history and tradition of conservative history-and-tradition legalism. Readers are, evidently, to ignore the opinion’s conceptual shifting and how it has otherwise shaken those rule-of-law values, and perhaps others, to the ground. Then, suddenly, sounding like Scalia saying “I’m an originalist . . . not a nut,” the Kavanaugh concurrence adds: “To be clear, I am not suggesting that the Court overrule cases where the Court has applied those heightened-scrutiny tests.”⁹⁵ Deferring any serious explanation here about why not, the concurrence continues: “But I am challenging the notion that those tests are the ordinary approach to constitutional interpretation. And I am arguing against extending those tests to new areas, including the Second Amendment.”⁹⁶

The concurrence’s moderating impulse is understandable—and, for many, entirely welcome—but still puzzling. How is means-end scrutiny, integral to the Court’s constitutional work for at least the better part of a century, not “the ordinary approach to constitutional interpretation”?⁹⁷ The word “ordinary” is clearly meant to be normative. It is apparently offered from an historicist-originalist baseline the likes of which the concurrence previously rejected. What is the defense of that baseline now? And what relationship, exactly, does the concurrence imagine exists between and among the Constitution, the rule of law, and originalism itself? Without elaborating, the concurrence does concede, in another conspicuous turn, that it is willing to be unprincipled in conventional constitutional and rule-of-law terms, deciding certain like cases differently in service of some rule-of-law values, chiefly a half-hearted objectivity.⁹⁸

This makes it all the more surprising that the concurrence does not describe its relevant decision-principle for future cases—what’s old, what’s new?—and how that decision-principle, and in what rule-of-law values mix, will enable it to transcend its own identified problematics of subjective judicial decision-making.⁹⁹ The concurrence instead seems to imagine that it will be able to decide future cases without falling back into the pits of judicial balancing or policymaking—in other words: subjective judicial choice-making—which the concurrence’s originalism claims to oppose. Future cases showing Kavanaugh’s approach at work seem likely to bear these problematics out.

* * *

Kavanaugh’s Rahimi concurrence gestures toward another highly consequential payoff of its project of anchoring its preferred history-and-tradition originalism to constitutional authority of the past, including Scalia decisions. Even before reaching its textual discussion of the deficiencies of means-end scrutiny, the concurrence features an important, but commonly overlooked footnote. This footnote—footnote six—reaches toward a legal resurrection of a long and basically dormant aspect of the Fourteenth Amendment.¹⁰⁰

Footnote six returns to a position that Dobbs surfaced two years earlier, also in a footnote.¹⁰¹ Dobbs’ footnote twenty-two outlines a conservative originalist history-and-tradition vision for unenumerated Fourteenth Amendment rights.¹⁰² This vision includes Dobbs’ history-and-tradition approach to substantive due process rights. It also, however, and likewise invoking Glucksberg, contemplates another set of unenumerated Fourteenth Amendment rights—rights said to be rooted in the Privileges or Immunities Clause.¹⁰³ Kavanaugh’s Dobbs concurrence reinforces this position in its own way.¹⁰⁴ And footnote six in Kavanaugh’s Rahimi concurrence rings the same bell, contemplating a novel Fourteenth Amendment privileges or immunities jurisprudence. Its realization would bring the Clause to life by inevitably placing the Court’s 150-plus-year-old decision in the Slaughter-House Cases into question.¹⁰⁵

After the body of Kavanaugh’s Rahimi concurrence explains that “[r]eliance on post-ratification history ‘has shaped scores of cases spanning all domains of constitutional law, every era of the nation’s history, and Justices of every stripe,’” the opinion offers a list of pertinent decisions starting in 2024 and winding back to Marshall’s 1819 opinion in McCulloch.¹⁰⁶ Then comes footnote six, providing in its entirety that:

The Court has similarly relied on history when deciding cases involving textually unenumerated rights under the Due Process Clause or the Privileges or Immunities Clause. In those contexts, the baseline is 180-degrees different: The text supplies no express protection of any asserted substantive right. The Court has recognized exceptions to that textual baseline, but in doing so has regularly observed that the Fourteenth Amendment “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997) (quotation marks omitted); see, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925) (“liberty of parents and guardians to direct the upbringing and education of children under their control”).¹⁰⁷

Footnote six’s casual but confident equation of substantive due process and privileges or immunities as independent and active sources of “textually unenumerated rights” under the Fourteenth Amendment is not original here, thanks partly to Dobbs’ footnote twenty-two. But it remains curious. What privileges or immunities decisions does the concurrence have in mind? The equation of substantive due process and privileges or immunities is reinforced as the footnote sutures past and potential future Fourteenth Amendment unenumerated rights decisions to Glucksberg and its so-called history-and-tradition test. The association of privileges or immunities with Glucksberg’s ostensible history-and-tradition methodology replicates footnote twenty-two’s bid. It likewise installs Glucksberg at the cornerstone of the privileges or immunities jurisprudence that it contemplates and invites.¹⁰⁸ Footnote six’s invocation of Glucksberg additionally clarifies the initial reference to the Court’s “reli[ance] on history when deciding cases involving textually unenumerated rights.”¹⁰⁹ This is, indeed, the concurrence’s shorthand for discussing history and tradition together.

This might all have been just a day’s descriptive work at the Court, except that the Slaughter-House Cases shut down the Privileges or Immunities Clause as an active fount for unenumerated liberties, leaving the Clause a nearly empty vessel since.¹¹⁰ This does not seem to trouble footnote six’s apparent project, which is less about elaborating an existing privileges or immunities jurisprudence (Kavanaugh knows how to make lists when he wants) than preparing for a new jurisprudence the boundaries of which will be set through a history-and-tradition analysis.¹¹¹

If Glucksberg’s muscle provisionally seems suited to the task, it may be because footnote six arrives precisely within an opinion indicating that Glucksberg is but one history-and-tradition decision on a much larger field of such decisions whose sum-total authority, some portion of which actually predates the Slaughter-House Cases, would inevitably support this work. Kavanaugh’s Rahimi concurrence does not itself connect all the live wires of its own thinking this way to simply and directly make the case that its ideas are ready for use. Nevertheless, those ideas are all present and available for the work that footnote six imagines history-and-tradition originalism may soon undertake.¹¹²

So far, this understanding of footnote six depends on reading it with and against the backdrop of Dobbs’ footnote twenty-two and Kavanaugh’s Dobbs concurrence. There, the Kavanaugh concurrence’s prime example of a protected privilege or immunity involves the right to travel interstate to end an unwanted pregnancy.¹¹³ Without full briefing on the issue, Kavanaugh’s Dobbs concurrence expresses certainty that the right to interstate travel to obtain an abortion exists, and thus promises to protect it, but without identifying its basis in the Constitution’s text. After Saenz v. Roe and its sourcing of the right to interstate travel in the Privileges or Immunities Clause, privileges or immunities is the natural and most likely contender.¹¹⁴

Footnote six does not dredge up abortion rights, but instead reaches for another example of unenumerated rights: parental rights à la Pierce v. Society of Sisters, an old substantive due process chestnut vindicating parents’ rights to direct the care and upbringing of their children.¹¹⁵ In the context of a discussion of privileges or immunities, Pierce is auspicious. At the Court, Justice Clarence Thomas has already identified Pierce as a potential object of constitutional track-switching, a means for moving constitutional parental rights protections from a Due Process Clause track to a new Privileges or Immunities Clause track.¹¹⁶ The move is not persnickety constitutional bookkeeping about, say, getting Pierce’s entry in the constitutional ledger exactly right. Along the lines loosely intimated by footnote six, this track-switching would arrive by re-keying Pierce’s parental rights protections to an originalist understanding—more specifically, a history-and-tradition originalist understanding—of privileges or immunities.¹¹⁷ After Bruen and Rahimi, it seems reasonable to expect that any such declaration would entail an originalist accounting of the nature and scope of parental rights themselves, along with an originalist assessment of the legality of government restrictions of those rights. Surely Kavanaugh anyway could not approve traditional means-end scrutiny of governmental infringements of these rights, which would involve, in the privileges or immunities setting, nothing if not rights in a “new area[]” of law.¹¹⁸ Accordingly, the assessment of new privileges or immunities protections for parental rights would likely implicate the new type of means-end review that Rahimi undertakes, inthe manner of an inquiry into “historical tradition” as in Roberts’ Rahimi majority opinion, itself conditioned by the history-and-tradition originalist approach called for by Kavanaugh’s Rahimi concurrence.¹¹⁹

Part of the potential drama of even a seemingly breakthrough constitutional ruling like this, involving Pierce and parental rights, is how it would effectively overthrow the Slaughter-House Cases while opening the gates to recognizing other privileges or immunities that might flood Slaughter-House’s grave. Many liberals have periodically dreamed of eliminating the Slaughter-House Cases to permit recognition of new liberal-favored rights that, as privileges or immunities, might be more secure against the claimed strains of the very idea of substantive due process.¹²⁰ Footnote six, like footnote twenty-two, prefigures new-old rights of ancient—historical and traditional—vintage, rights resembling something like an American equivalent of the ancient rights of Englishmen.¹²¹ Pierce might be a first or early step in those directions, giving a flavor for what these new-old rights would look like in the family law setting. But were the Court to take this step, it is hard to imagine others would not follow, particularly not when one recalls the wider array of highly gendered, racially coded, and hierarchically arranged family law rights that have been lost through time and constitutional change, some of them proudly stripped away by the Court’s left-liberal constitutional family law decisions since the 1960’s.¹²² Pierce’s repositioning under the Privileges or Immunities Clause could thus inaugurate a new line of history-and-tradition-based rights capable of transforming American constitutional family law in ways that would take it, and American law more generally, forward to the past and distinctively to the political right. What might the Court in future terms do with modern alterations to marriage, divorce, marital property, alimony, and custody rules that have de-centered and thus diminished ancient family law norms, including the privileging of the rights of men as husbands and fathers? What, alternatively, might these possibilities mean for modern domestic violence laws and the protections that they provide? Is it possible that Rahimi could pave the way not simply toward their modest vindication, but also to wider challenges that move the law toward hollowing them out or even eradicating them altogether? What other sorts of ancient family rights, and what other sorts of social rights of “Americanmen,” more generally, might follow in this wake?

Nor is it only ancient family law or other social rights that could potentially be back in play. For some time, a growing number of legal academics, many with different kinds of conservative commitments, have been seeking to rehabilitate the Privileges or Immunities Clause at least partly as a means to re-establish constitutional protections for old economic liberties, including the contract rights that Lochner parked under the Due Process Clause.¹²³ Footnote six, like footnote twenty-two, converges with those efforts in ways that could usher in various laissez-faire constitutional protections that, like their social-rights counterparts, had for a very long time seemed practically unimaginable for their lack of an apparent textual vehicle.

One irony is that Kavanaugh’s Rahimi concurrence makes these possibilities more conceivable through its defense and enhancement of a Scalian history-and-tradition originalist analysis. But Scalia himself balked at the notion of tackling the Slaughter-House Cases’ validity when given the opportunity in McDonald—a Second Amendment case no less—to reopen the Privileges or Immunities Clause as a source for protecting unenumerated rights. Scalia did not simply dismiss, but he fairly ridiculed, the idea, characterizing the prospect of renewing the Privileges or Immunities Clause during oral argument in McDonald as academic self-abuse, the “darling of the law professoriate.”¹²⁴ The sense was this renewal was “big idea” academic game play that no serious Justice should entertain. The uncertainty involved in the enterprise, and the far-reaching consequences that might follow the Court’s reversal of the Slaughter-House Cases, was evidently enough to quash Scalia’s interest.¹²⁵

Many originalists have preserved the wounds of Scalia’s insult, but Kavanaugh’s Rahimi concurrence indicates that its sting and its truth-ringing, such as it is, may at last be fading as history-and-tradition conservative originalism rises through and above Scalia’s own “faint-hearted originalis[m].”¹²⁶ Doctrinally, Scalia’s views shaped McDonald’s bottom-line decision to reject the privileges or immunities incorporation claims in the case.¹²⁷ The return in Dobbs’ footnote twenty-two, and now in Kavanaugh’s Rahimi concurrence and its own footnote six, of a potentially even wider array of constitutionally protected privileges or immunities shows, once again, that today is a different conservative legal age.

This last point opens onto an instructive lesson in two parts. One part, already familiar, recognizes that Kavanaugh’s Rahimi concurrence’selevation of Scalia to the pantheon of great American justices is, finally, only somewhat about Scalia the Justice, the man. More decidedly, it is about elevating the authority of Scalia’s conservative originalist history-and-tradition method, its conservative legal project, and that project’s place in American constitutional law. The success of lifting Scalia’s originalism up like this may prove to be a condition precedent for all the things that a new generation of conservative Justices, now in charge, may do with this originalism. The current Justices’ dreams—Kavanaugh’s, certainly—include things Scalia himself refused to do with his originalism, proudly defined by a commitment to judicial moderation.

The other part of the lesson involves recognizing some of the implications of the emergent splits between the older and newer forms of history-and-tradition originalism. Here, Kavanaugh’s Rahimi concurrence has a problem on its hands that it never squarely confronts. Kavanaugh’s Rahimi concurrence may boast of its association with Scalian originalism and its legal authority, as well as Scalian defenses of Kavanaugh’s method of originalist interpretation, partly provided by Scalia’s extra-judicial writings which the concurrence also cites.¹²⁸ But the concurrence’s contemplated deployments of Scalian history-and-tradition originalism cannot be defended simply in the terms that Scalia once offered for it. Scalia’s fainthearted originalism arose in a very different historical moment and with very different purposes in mind.¹²⁹ When Scalia launched his conservative originalism, it functioned as a distinctive counterpoint to—and as a check against—the Warren Court’s perceived liberal, living constitutionalist activist excesses.¹³⁰ In that setting, originalists like Scalia, but also Robert Bork, whose authority Kavanaugh’s concurrence dutifully invokes, defended their originalist constitutional visions as a shared practice of judicial restraint, against judicial activism, and as a shared practice of judicial modesty, against the hubris of judge-rule. These shared visions were mindful, they claimed, of democracy and democratic process outputs, and eschewed going in whole hog for aggressive originalist counter-majoritarian judicial rule.¹³¹

This familiar story is worth noting because Kavanaugh’s Rahimi concurrence exemplifies a predilection for a dramatically different originalist practice. Kavanaugh’s Rahimi concurrence’s history-and-tradition test looks on the surface more or less the same as Scalia’s, but its deployments, and hence its actual grounds, are very different, and increasingly beset and besotted by the very problems of judicial activism that originalists like Scalia once decried. This history-and-tradition originalist activism is now prominently displayed in the Court’s recent originalist handiwork.¹³² In a range of originalist and non-originalist rulings—many transforming large swaths of the American constitutional landscape and anticipating the transformation of still others—the old Scalian defenses of a Scalian fainthearted originalism are simply inadequately tailored to justify the kind of originalist project the Court has been pursuing. This point is emphatically true for Kavanaugh’s Rahimi concurrence and its anticipated deployments of history-and-tradition originalism in bold, new directions.

The new, activist history-and-tradition originalism that Kavanaugh’s concurrence touts may look to past Supreme Court decisions as imbuing it with the authority it will need for what it is doing and wishes to do. But this originalism’s self-account, like its account of the legal authorities on which it relies, must itself be keyed to the work the Court is doing and planning to do with it. The defenses of this activist history-and-tradition originalism, moreover, must be specified with clarity and precision in terms of age-old rule-of-law demands like neutral (read: principled) decision-making. Those demands cannot be satisfied through rhetorical gestures that surface when convenient, as in Dobbs, and that are dispatched when inconvenient, as in Kavanaugh’s Rahimi concurrence.¹³³ Kavanaugh’s Rahimi concurrence instead largely contents itself—imagining it has satisfied the rigors of public justification for its history-and-tradition originalism—by associating itself with Scalia’s justifications for a far more jurisprudentially modest history-and-tradition originalism and with the past decisions and writings in which it is found.¹³⁴

Taken as a whole, Rahimi teaches that the Court’s new conservative activist originalism may have limits discoverable, as Roberts’ opinion indicates, in American “common sense,” or, as Kavanaugh’s concurrence intimates, in respect for some kinds of precedent.¹³⁵ What that common sense and that vision of past judicial authority look like in operation, however, is not static. The picture’s contours and meaning will change over time, particularly if the demand for neutral decision-making runs as deep in judicial DNA as many believe.¹³⁶ If it does, the wider horizons and visions that Kavanaugh’s Rahimi concurrence offers—some of them now radically out-of-reach—might, with time and shifts in Court membership, be held to be required by legal demands for principled adjudication.¹³⁷ Though Kavanaugh’s concurrence does not openly demand these ends, it generates the momentum for these wider transformations in the Constitution’s meaning.

Rahimi, taken as a whole, also instructs that the Court may heed whatever limits on its originalism it will heed without actually sacrificing or seriously halting the onward march of its activist conservative originalist project, whatever its bases for decision.¹³⁸ As the Court rediscovers in Rahimi, temporary pauses, even some backtracking on rulings once issued, may provide the Justices space to give their originalism another think, while devising new strategies and agendas for its future. One of Rahimi’s abiding lessons may be that the Court may more readily advance toward some of its largest objects of constitutional transformation by clipping its originalism’s wings. These sacrifices may be highly consequential in individual cases, as they are for victims and survivors of domestic abuse in Rahimi.¹³⁹ They may also please some of the American people, if not the pure originalists who portray originalism as above politics. The tougher truth, however, may be that the Court is simply alert and responding to the demands of practical politics as it seeks to transform the judicial practice of originalism into a constitutional faith that properly governs American life and the American future.

Conclusion

Kavanaugh’s Rahimi concurrence draws from John Roberts’ image bank to describe itself as umpiring, not playing in, the constitutional game.¹⁴⁰ That self-conception may well be preferable to one in which Justices openly carry swords atop their robes, wielding them as dedicated conservative legal warriors.¹⁴¹

Sometimes, though, as Kavanaugh’s Rahimi concurrence shows, a game position may only be a pose. This is especially so in a setting like the present one, where the umpire’s judicial pronouncements question, challenge, and threaten to alter basic and long-settled rules of the game, only to return to calling balls and strikes in that re-imagined endeavor, if then.

Where Supreme Court decision-making is in issue, talk of the “game” is always fraught, always metaphor. Constructively, it is a strategy for apprehending and discussing the stakes of the Court’s legal work that makes those stakes more manageably conceivable against their far-reaching and practically incalculable life-and-death and world-historic potentialities. Domesticating those prospects, the game metaphor must not obscure the reality that, where the Constitution is involved, there is no meaning that strictly inheres in the text itself. Constitutional meaning is invariably constructed through not only reading text, history, tradition, and precedent but also, in part, through the Justices’ understandings of the ever-shifting operations, practicalities, and limits of government within a vastly complex American political culture. Measured by those standards, the conservative originalist bid that seeks to make constitutional interpretation a matter of the past, comes up short. Ordering the Constitution this way, the Court abandons the present and the country that it helps to rule, pretending that it is not actively governing it, and, in the process, shaping the past, present, and future, all.

1. United States v. Rahimi, 144 S. Ct. 1889, 1902 (2024). ↩︎
2. Id. ↩︎
3. For one early account of some of the practical consequences, see Rachel Weiner, The Supreme Court Upended Gun Laws Nationwide. Mass Confusion Has Followed, Wash. Post (July 7, 2024, 6:00 AM), https://www.washingtonpost.com/dc-md-va/2024/07/07/gun-laws-supreme-court-bruen-rahimi/ [https:‌//‌perma.cc/Y5FJ-TG9E]. ↩︎
4. Rahimi, 144 S. Ct. at 1910-24 (Kavanaugh, J., concurring). ↩︎
5. Id. at 1924. ↩︎
6. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 n.22 (2022); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2128-30, 2156 (2022); Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, 117 F.4th 389, 399 (6th Cir. 2024) (Thapar, J., concurring). For an argument suggesting some of these developments are farther along than Justice Kavanaugh’s Rahimi concurrence acknowledges, see Francesca Procaccini, The End of Means-End Scrutiny, 75 Duke L.J. (forthcoming 2025) (manuscript at 13-47), https://ssrn.com/abstract=4909510 [https://perma.cc/‌T42Y-SPFH]. ↩︎
7. See, e.g., Rahimi, 144 S. Ct. at 1901-02, 1903 & n.2; Trump v. United States, 144 S. Ct. 2312, 2347 (2024). ↩︎
8. Some possibilities may emerge in United States v. Skrmetti, 144 S. Ct. 2679 (2024) (mem.) (granting certiorari). Indications of Kavanaugh’s understanding of the relationship of Rahimi to Skrmetti surfaced, at times subtly, during oral arguments in the more recent case. See, e.g., Oral Argument Transcript at 40-41, 44-45, 49-54, 104-09, 141, 148-49, Skrmetti, 144 S. Ct. 2679 (2024) (No. 23-477) (mem.). ↩︎
9. Rahimi, 144 S. Ct. at 1895-96, 1901-02. ↩︎
10. See United States v. Rahimi, 61 F.4th 443, 460-61 (5th Cir. 2023); Bruen, 142 S. Ct. at 2128-34; Rahimi, 144 S. Ct. at 1903. ↩︎
11. Bruen, 142 S. Ct. at 2126. The term has led many to treat Bruen as a case about history and tradition, despite its author’s, Justice Clarence Thomas’, own views on history-and-tradition originalism, clarified in different ways, and among other sources, in his Rahimi dissent. Rahimi, 144 S. Ct. at 1933-42 (Thomas, J., dissenting). ↩︎
12. See Rahimi, 144 S. Ct. at 1902-03 (majority opinion). ↩︎
13. 142 S. Ct. 2228, 2242-43, 2245-46 (2022); see Marc Spindelman, Dobbs’ Sex Equality Troubles, 32 Wm. & Mary Bill Rts. J. 117, 120 (2023). A collection of academic views on whether Dobbs’ originalism should or should not be counted in those terms is in Reva B. Siegel, Memory Games, Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1170-73 & nn.164–70 (2023). ↩︎
14. Rahimi, 144 S. Ct. at 1903. ↩︎
15. See id. at 1897-98, 1901-03. ↩︎
16. Compare id., with id. at 1941 (Thomas, J., dissenting). ↩︎
17. Id. at 1901 (majority opinion). For the majority opinion’s references to tradition, see id. at 1896-98, 1901-03. ↩︎
18. See id. at 1901. ↩︎
19. And it would have made this sacrifice in a presidential election year. On the general point, see Linda Greenhouse, The Supreme Court Steps Back from the Edge, N.Y. Times (June 26, 2024), https://www.nytimes.com/2024/06/26/opinion/guns-supreme-court.html?searchResultPosition=9 [https://perma.cc/35E6-425B]. ↩︎
20. Rahimi, 144 S. Ct. at 1947 (Thomas, J., dissenting). ↩︎
21. Id. ↩︎
22. Compare, e.g., Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433, 435-37 (2023), with Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477, 1479-80 (2023), and Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 540-53 (2024). ↩︎
23. Dobbs is arguably the most famous example. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2304-17 (2022) (Kavanaugh, J., concurring). Dobbs’—and other cases’—credentials as originalist may be, and, indeed, have been, questioned. Some sources are collected in Siegel, supra note 13, at 1141. ↩︎
24. Originalists, and others, disagree about the relation of history-and-tradition tests to originalism. For some pertinent accounts, see supra note 22. ↩︎
25. See, e.g., Josh Blackman, Some Commentary From the Left on Rahimi, Reason: The Volokh Conspiracy (June 26, 2024, 9:54 AM), https://reason.com/volokh/2024/06/26/some-commentary-from-the-left-on-rahimi/ [https://perma.cc/Q9EK-FN46]; Michael C. Dorf, For Rahimi: Two Cheers (the Result and the Methodology) and a Few Jeers, Dorf on L. (June 21, 2024), https://www.dorfonlaw.org/2024/06/for-rahimi-two-cheers-result-and.html [https://perma.cc/‌2VDD-L28R]; Michael C. Dorf, Justice Kavanaugh’s Concurrence in Rahimi Contains a Whopper of an Error (or Worse), Dorf on L. (June 26, 2024), https://www.dorfonlaw.org/‌2024/06/justice-kavanaughs-concurrence-in.html [https://perma.cc/UA6R-2H5R] [hereinafter Dorf, Kavanaugh’s Concurrence’s Whopper Error]; Elie Mystal, The Supreme Court Just Got a Gun Ruling Right—for Completely Bonkers Reasons, The Nation (June 21, 2024), https://www.thenation.com/‌article/archive/rahimi-supreme-court-domestic-violence/ [https://perma.cc/F2GQ-VFX2]; Eric Segall, Justice Kavanaugh, Umpires, and the “No Serious Person Approach” to Constitutional Interpretation, Dorf on L. (June 24, 2024), https://www.dorfonlaw.org/2024/06/justice-kavanaugh-umpires-and-no.html [https://perma.cc/JA7C-3446]; Mark Tushnet, Rahimi as a Class Essay, Balkinization (June 22, 2024), https://balkin.blogspot.com/2024/06/rahimi-as-class-essay.html [https://‌perma.cc/KZK3-ZFMP]. ↩︎
26. 521 U.S. 702, 720-21 (1997). ↩︎
27. See, e.g., Dobbs, 142 S. Ct. at 2242, 2246-48, 2250, 2253-54, 2259-60, 2282-84; Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1818, 1821-23, 1827 (2024). The point here is in contrast to supports for the Court’s originalist work that may be found elsewhere, including in academic work or the authority of the conservative social movement. Dov Fox and Mary Ziegler trace some sources in Dov Fox & Mary Ziegler, The Lost History of “History and Tradition”, 98 S. Cal. L. Rev. 1 (2024). Hardly incidentally, a Glucksbergian history-and-tradition analytic lurks in Rahimi’s Second Amendment background, as Kavanaugh’s Rahimi concurrence notes. See United States v. Rahimi, 144 S. Ct. 1889, 1919 n.6 (2024) (Kavanaugh, J., concurring); see also, e.g., District of Columbia v. Heller, 554 U.S. 570, 577, 592, 627, 629, 635 (2008); McDonald v. City of Chicago, 561 U.S. 742, 760 (2010); id. at 792 (Scalia, J., concurring); id. at 812-16 (Thomas, J., concurring); id. at 886 (Stevens, J., dissenting). ↩︎
28. See, e.g., Emily Bazelon, How ‘History and Tradition’ Rulings Are Changing American Law, N.Y. Times (Apr. 29, 2024), https://www.nytimes.com/2024/04/29/magazine/history-tradition-law-conservative-judges.html [https://perma.cc/S85M-EHEK]. ↩︎
29. McDonald, 561 U.S. at 791. ↩︎
30. Rahimi, 144 S. Ct. at 1901 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 29 n.7 (2022)). ↩︎
31. Marc Spindelman, Washington v. Glucksberg’s Original Meaning, 72 Clev. St. L. Rev. 981, 1019 (2024). ↩︎
32. Dobbs, 142 S. Ct. at 2242-43, 2260, 2266-68, 2277-78 (2022); id. at 2309 (Kavanaugh, J., concurring). Dobbs itself contradicts the proposition about its own limited scope in footnote twenty-two, id. at 2248 n.22 (majority opinion), a footnote discussed infra notes 101–127 and accompanying text. Department of State v. Muñoz, 144 S. Ct. at 1821-25, likewise applies the history-and-tradition test, said to derive from Glucksberg, in the right to marry context, though only as to the specifications of the marriage right described as being at issue in the case. Muñoz thus re-presents Dobbs’ selective application problem in a new setting. ↩︎
33. See generally Spindelman, supra note 31. ↩︎
34. Readings of Glucksberg that acknowledge its reliance on contemporary views, values, and practices include Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 14-17 (2006); Nomination of Amy Coney Barrett to the U.S. Supreme Court, Questions for the Record, 116th Cong. 5-6 (Oct. 16, 2020), https://www.judiciary.senate.gov/imo/media/doc/Barrett%‌20Responses%20to%20QFRs.pdf [https://perma.cc/SY3U-ENNQ]; Seth F. Kreimer, The Second Time as Tragedy: The Assisted Suicide Cases and the Heritage of Roe v. Wade, 25 Hastings Const. L.Q. 863, 873 n.55 (1997); Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 Utah L. Rev. 665, 670-71 (1997); Ronald Dworkin, Assisted Suicide: What the Court Really Said, N.Y. Rev. Books, Sept. 25, 1997, at 40, 42. But see McConnell, supra note 34, at 673-74. A fresh re-reading of Glucksberg showing the different ways it is not methodologically indexed to history and tradition alone, but also to contemporary views, values, and practices, and that cross-checks its results against archival Supreme Court materials, is in Spindelman, supra note 31, at 996-1019. ↩︎
35. Spindelman, supra note 31, at 996-1019. ↩︎
36. Lawrence v. Texas and Obergefell v. Hodges, viewing the Fourteenth Amendment’s Due Process Clause’s substantive protections for unenumerated rights as expressions of an evolving and living Constitution, clarified this as a matter of doctrine. See Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Obergefell v. Hodges, 576 U.S. 644, 671-72 (2015). Making a larger point about the “complicated” relationship of substantive due process to originalism, Randy Barnett and Larry Solum have recently “assume[d] that the specific substantive due process analysis in Glucksberg cannot be justified on originalist grounds.” Barnett & Solum, supra note 22, at 450 n.74. ↩︎
37. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 121-27 & n.6 (1989); cf. also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38, 45 (Amy Gutman, ed., 1998). ↩︎
38. See, e.g., Barnett & Solum, supra note 22, at 435-39. ↩︎
39. United States v. Rahimi, 144 S. Ct. 1889, 1910, 1913, 1915-20, 1916 n.4, 1923 (2024) (Kavanaugh, J., concurring). Justice Barrett’s Rahimi concurrence refers to tradition as “post-enactment history.” Id. at 1924-25 (Barrett, J., concurring). ↩︎
40. Id. at 1915-20 (Kavanaugh, J., concurring); id. at 1924 (2024) (Barrett, J., concurring); id. at 1936-39 (Thomas, J., dissenting) (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022)); see also, e.g., Mike Rappaport, Kavanaugh’s Mistakes About Post Ratification History, Originalism Blog (June 24, 2024), https://originalismblog.typepad.com/the-originalism-blog/2024/06/kavanaughs-mistakes-about-post-ratification-historymike-rappaport-.html [https://perma.cc/686U-CHN3]. ↩︎
41. Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring). ↩︎
42. Id. at 1917-18 (Kavanaugh, J., concurring) (emphasis omitted); see also id. at 1920-22 (Kavanaugh, J., concurring). Although Barrett signed onto Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2239 (2022), and has more recently written an opinion utilizing Glucksberg’s so-called history-and-tradition test, Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1821-22 (2024), her Rahimi concurrence, speaking only for herself, presses in more orthodox originalist directions, Rahimi, 144 S. Ct. at 1924, even as other opinions she has written question the exclusivity of this historicist originalist approach to figuring constitutional meaning. See, e.g., Samia v. United States., 143 S. Ct. 2004, 2020 (2023) (Barrett, J., concurring in part and in the judgment). One view of Barrett’s current originalist work sees her emerging jurisprudence as “work[ing] the law pure.” John O. McGinnis, A Scholar-Justice, Law & Liberty (July 25, 2024), https://lawliberty.org/a-scholar-justice/ [https://perma.cc/59VW-SDHZ]. This perspective stands in some contrast to understandings of Barrett’s bench work as problematically breaking in more liberal directions. See, e.g., Joan Biskupic, The Last Best Hope for Supreme Court Liberals: Amy Coney Barrett, CNN (Nov. 8, 2024, 6:00 AM), https://www.cnn.com/2024/11/08/politics/amy-coney-barrett-supreme-court-liberal-last-best-hope/index.html [https://perma.cc/K9ZZ-KCF3]; Ross Douthat, Amy Coney Barrett and the Right’s Elite-Building Problem, N.Y. Times (Mar. 7, 2025), https://www.nytimes.com/‌2025/03/07/opinion/barrett-trump-maga-elite.html [https://perma.cc/C9YB-WBL7]; Ruth Marcus, Amy Coney Barrett Is No Handmaid to the Supreme Court’s Conservative Majority, Wash. Post (Mar. 1, 2024), https://www.washingtonpost.com/opinions/2024/05/01/amy-coney-barrett-handmaid-justice-conservative/ [https://perma.cc/6ZGJ-6NLD]; cf. Linda Wertheimer, Supreme Court Reporter Linda Greenhouse Retires, NPR (July 12, 2008, 8:00 AM), https://www.npr.org/2008/07/12/92489115/‌supreme-court-reporter-linda-greenhouse-retires [https://perma.cc/XT2B-5TRQ]. ↩︎
43. Cf. Michael D. Ramsey, Beyond the Text: Justice Scalia’s Originalism in Practice, 92 Notre Dame L. Rev. 1945, 1957, 1960 (2017). ↩︎
44. Rahimi, 144 S. Ct. at 1917 (Kavanaugh, J., concurring). ↩︎
45. Id. ↩︎
46. Id. (discussing McCulloch v. Maryland, 17 U.S. (1 Wheat.) 316, 401 (1819)). ↩︎
47.  Id. ↩︎
48. See, e.g., supra note 40. ↩︎
49. The hagiographic form that the Kavanaugh concurrence’s adulation of Justice Scalia takes has struck some commentators as overfed and tiresome. See, e.g., Josh Blackman, Rahimi, Meenie, Miney, Mo; After Only Two Years Bruen’s Gotta Go!, Reason: The Volokh Conspiracy (June 25, 2024), https://reason.com/volokh/2024/06/25/rahimi-meenie-miney-mo-after-only-two-years-bruens-gotta-go/ [https://perma.cc/H5QP-U68W]. ↩︎
50. Rahimi, 144 S. Ct. at 1918 (Kavanaugh, J., concurring); see also id. at 1921. ↩︎
51. Blackman, supra note 49. ↩︎
52. See Rahimi, 144 S. Ct. at 1918 (Kavanaugh, J., concurring). ↩︎
53. Id. ↩︎
54. See, e.g., id. at 1917-18. Other Scalia majority opinions that Kavanaugh’s Rahimi concurrence mentions, aside from District of Columbia v. Heller, 554 U.S. 570, 605-619, 626-628 (2008), include Crawford v. Washington, 541 U.S. 36, 47-50 (2004), Printz v. United States, 521 U.S. 898, 905-18 (1997), United States v. Gaudin, 515 U.S. 506, 515-19 (1995), Plaut v. Spendthrift Farms, Inc., 514 U.S. 211, 223-25 (1995), and Holland v. Illinois, 493 U.S. 474, 481-482 & n.1 (1990). See Rahimi, 144 S. Ct. at 1917 n.5 (Kavanaugh, J., concurring). For one account of “super-precedent,” see generally, Michael J. Gerhardt, Super Precedent, 90 Minn. L. Rev. 1204 (2006). On Heller’s challenged claims to originalist foundations, see, for example, Heller, 554 U.S. at 637 (Stevens, J., dissenting); Richard A. Posner, In Defense of Looseness, New Republic (Aug. 27, 2008), https://‌newrepublic.com/article/62124/defense-looseness [https://perma.cc/774Z-BB87]; Brannon P. Denning & Glenn H. Reynolds, Five Takes on District of Columbia v. Heller, 69 Ohio St. L.J. 671, 676 (2008); Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 192-92 (2008); cf. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2320-22 (2022) (Breyer, Sotomayor, Kagan, JJ., dissenting). ↩︎
55. See Rahimi, 144 S. Ct. at 1896 (majority opinion) (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022)); id. at 1917-18, 1922-23 (Kavanaugh J., concurring). A note on how “[t]he Court’s new Second Amendment jurisprudence . . . favor[s] a ‘historical tradition’ approach,” is in Procaccini, supra note 6, at 12. ↩︎
56. Indeed, in introducing Scalia into the Madison-Marshall mix, the Kavanaugh concurrence quotes from Scalia’s separate concurrence in McDonald v. Chicago, 561 U.S. 742 (2010), and Scalia’s dissenting opinion in Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). See Rahimi, 144 S. Ct. at 1917-18 (Kavanaugh J., concurring). ↩︎
57. See Rahimi, 144 S. Ct. at 1917-18. ↩︎
58. See, e.g., Charles E. Carpenter, Oliver Wendell Holmes, Jurist, 8 Or. L. Rev. 269, 270 (1929). ↩︎
59. Rahimi, 144 S. Ct. at 1920 (Kavanaugh, J., concurring). ↩︎
60. For the list, see id. ↩︎
61. Lochner v. New York, 198 U.S. 45, 74-76 (1905) (Holmes, J., dissenting); Abrams v. United States, 250 U.S. 616, 624-631 (1919) (Holmes, J. dissenting). ↩︎
62. W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 396-97 (1937) (quoting Adkins v. Child.’s Hosp., 261 U.S. 525, 569-70 (1923) (Holmes, J., dissenting)); Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969); see also id. at 450-54 (Douglas, J., concurring). ↩︎
63. Some lower court judges have, nevertheless, attempted aspects of the translational work themselves. See, e.g., Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, 117 F.4th 389, 405-07 (6th Cir. 2024) (Thapar, J., concurring). ↩︎
64. United States v. Virginia (VMI), 518 U.S. 515, 566-608 (1996) (Scalia, J., dissenting). For one classic articulation of Scalia’s position on Roe v. Wade, 410 U.S. 113 (1973), and constitutional abortion rights, see Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 979-1002 (1992) (Scalia, J., concurring in the judgment and dissenting in part). For Dobbs’ invocations of Scalia’s views on abortion, see Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243, 2265, 2272, 2275, 2279 (2022). ↩︎
65. VMI, 518 U.S. at 575 (Scalia, J., dissenting). For discussion, see Spindelman, supra note 13, at 134-35. For some possible convergence of the equality positions in Kavanaugh’s Rahimi concurrence, see Rahimi, 144 S. Ct. at 1915, 1921 n.7 (Kavanaugh, J., concurring). ↩︎
66. Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) (Scalia, J., joined by Rehnquist, C.J.). Glucksberg’s elision of Michael H. was intentional. Spindelman, supra note 31, at 1018-19. Another example of Scalian plays in play in recent decisions is found in Department of State v. Muñoz, 144 S. Ct. 1812, 1821-22 (2024), which likewise relies on Glucksberg, though it may more properly be thought of as relying on Scalia’s opinion in Michael H. and its footnote six. ↩︎
67. Rahimi, 144 S. Ct. at 1917 (Kavanaugh, J. concurring). ↩︎
68. Id. at 1918-19. ↩︎
69. Further adding to history-and-tradition originalism’s strengths are Scalia’s extrajudicial, pro-originalist writings, which Kavanaugh’s Rahimi concurrence also mentions. Id. at 1912 (quoting Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, 864 (1989) [hereinafter Scalia, The Lesser Evil]; Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989)). The Kavanaugh concurrence’s appeal to these texts is understandable, given their relevance to its portrait of Scalia and his authority as providing a modern warrant for the Court’s ongoing originalist work. The specific extrajudicial writings that the concurrence mentions supply their own additional reasons for paying Scalia’s originalist method and thought the honor that they are due. The curtain of silence that the concurrence otherwise drops around the sprawling literature critical of Scalia’s originalist ideas, however problematic in other terms, indicates that the concurrence conceives Scalia’s views on how to run an originalist argument—unadorned and undiminished by critical nay-saying—as the relevant authority the concurrence is saying that Kavanaugh will heed. And that the Court should, too. ↩︎
70. Rahimi, 144 S. Ct. at 1901 (majority opinion); see also supra text accompanying notes 18–19. ↩︎
71. Rahimi, 144 S. Ct. at 1922-24 (Kavanaugh, J., concurring). ↩︎
72. Id. at 1901-02 (majority opinion); id. at 1930-47 (Thomas, J., dissenting). ↩︎
73. Id. at 1920-22 (Kavanaugh, J., concurring). For another possibility, which presently remains out of focus, see supra note 65. ↩︎
74. As one recent decision, thinking with Kavanaugh’s Rahimi concurrence, has put it: “[W]e have long considered (in fact, one might say it’s a tradition to consider) ‘tradition’ in constitutional analysis.” Nat’l Rifle Ass’n v Bondi, 133 F.4th 1108, 1134 n.1 (11th Cir. 2025) (Rosenbaum, J., concurring) (citing Rahimi, 144 S. Ct. at 1917-20 & n.5 (Kavanaugh, J., concurring)).  ↩︎
75. Rahimi, 144 S. Ct. at 1912-13 & n.2, 1920-22 (Kavanaugh, J., concurring). ↩︎
76. Id. at 1920-22. ↩︎
77. Id. ↩︎
78. Id. at 1920; see also id. at 1910. ↩︎
79. Id. ↩︎
80. Id. at 1921; see also id. at 1920. Broadly construing the point, the relevant sources the concurrence specifically cites here include Joel Alicea & John D. Ohlendorf, Against the Tiers of Constitutional Scrutiny, 41 Nat’l Affs. 72, 73 (2019), Richard Fallon Jr., The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 30 (2019), and Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 125 (1991) (Kennedy, J., concurring in judgment). Cf. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125-27 (2022). ↩︎
81. If not considerably longer. William Baude contends that “Founding Era understandings may in truth lead to balancing” rather than simply counsel against it. William Baude, Fear of Balancing, 2024 Sup. Ct. Rev. 169, 169 (2025). ↩︎
82. One classic expression of the contrary impulse comes from Oliver Wendell Holmes in Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting). Modern sources discussing the impulse include Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 8-14 (1999), and Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 Wm. & Mary L. Rev. 19, 21-27, 33-36 (1995). ↩︎
83. Rahimi, 144 S. Ct. at 1920 (Kavanaugh, J., concurring). ↩︎
84. See, e.g., Dorf, Kavanaugh’s Concurrence’s Whopper Error, supra note 25. ↩︎
85. McCulloch v. Maryland, 17 U.S. (1 Wheat.) 316, 407 (1819). ↩︎
86. Rahimi, 144 S. Ct. at 1920-21 (Kavanaugh, J., concurring). ↩︎
87. See, e.g., id. at 1921. But see Dorf, Kavanaugh’s Concurrence’s Whopper Error, supra note 25. ↩︎
88. Here, Kavanaugh’s position looks to be to the right of Barrett’s views expressed in Vidal v. Elster, 602 U.S. 286, 311 (2024) (Barrett, J., concurring in part). For a challenge to the basic point, see Baude, supra note 81, at 178-80. ↩︎
89. Rahimi, 144 S. Ct. at 1921 (Kavanaugh, J., concurring) (quoting Alicea & Ohlendorf, supra note 80, at 73). ↩︎
90. In this setting, various protections of economic liberties from political regulation come to mind. See, e.g., Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897); Davidson v. New Orleans, 96 U.S. 97, 104 (1878); Hurtado v. California, 110 U.S. 516, 536 (1884). So do judicial decisions vindicating natural law rights. See, e.g., Slaughter-House Cases, 83 U.S. 36, 113-14, 116, 122 (1874) (Bradley, J., dissenting). A larger context is productively suggested by, among other sources, Jesse H. Choper, Michael C. Dorf, Richard H. Fallon, Jr., Frederick Schauer, Constitutional Law: Cases, Comments, and Questions 369-74 (14th ed. 2023). ↩︎
91. Rahimi, 144 S. Ct. at 1922 (Kavanaugh, J., concurring). ↩︎
92. I thank a friend for the imagery here. ↩︎
93. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 Tex. L. Rev. 959, 961-63, 979-93 (2008); Alexander M. Bickel, The Supreme Court 1960 Term-Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 43, 46-47, 51 (1961); Gerald Gunther, The Subtle Vices of the “Passive Virtues”: A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1, 3, 10 (1964). ↩︎
94. Rahimi, 144 S. Ct. at 1921 (Kavanaugh, J., concurring). The qualification in the text is necessary given how one might source the roots of the Kavanaugh Rahimi concurrence’s position in Scalia’s lone dissent in United States v. Virginia (VMI), 518 U.S. 515, 567-68 (1996) (Scalia, J., dissenting). In its own way, Kavanaugh’s concurrence’s position raises questions at the Second Amendment’s foundations in Heller, where Scalia’s majority opinion rejected Justice Stephen Breyer’s bid for open-ended interest balancing while deferring the question of which exact form of heightened scrutiny, or means-end review, the Court would rely on in future cases involving gun rights. District of Columbia v. Heller, 554 U.S. 570, 626-35. That deferral operationally presumes the ongoing validity of the various “standards of scrutiny that [the Court has] . . . applied to enumerated constitutional rights.” Id. at 628. ↩︎
95. Nina Totenberg, Justice Scalia, the Great Dissenter, Opens Up, NPR (April 28, 2008), https://www.npr.org/2008/04/28/89986017/justice-scalia-the-great-dissenter-opens-up [http://perma.cc/D6TX-T35Z]; Rahimi, 144. S. Ct. at 1921 (Kavanaugh, J., concurring). ↩︎
96. Rahimi, 144 S. Ct. at 1921 (Kavanaugh, J., concurring). ↩︎
97. Id. (emphasis added). ↩︎
98. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 11-17 (1959). However much this may place Kavanaugh’s Rahimi concurrence at right angles to neutral constitutional principles, it is, in this respect, consistent with the approach in Kavanaugh’s Dobbs concurrence. Despite that concurrence’s repeated insistence on neutrality in the abortion setting, see, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2305 (2022) (Kavanaugh, J., concurring), the opinion proudly refuses to give similar treatment to all the cases in the Court’s Fourteenth Amendment substantive due process line, without any expressly articulated basis for the refusal at a vital juncture of the opinion. Discussion of the point is in Spindelman, supra note 13, at 167-72. ↩︎
99. Cf. L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 478 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024) (mem.). ↩︎
100. Rahimi, 144 S. Ct. at 1919 n.6 (Kavanaugh, J., concurring). ↩︎
101. Id.; Dobbs, 142 S. Ct. at 2248 n.22; id. at 2309 (Kavanaugh, J., concurring). ↩︎
102. Footnote twenty-two provides:
     That is true regardless of whether we look to the Amendment’s Due Process Clause or its Privileges or Immunities Clause. Some scholars and Justices have maintained that the Privileges or Immunities Clause is the provision of the Fourteenth Amendment that guarantees substantive rights. See, e.g., McDonald v. Chicago, 561 U.S. 742, 813–850, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (THOMAS, J., concurring in part and concurring in judgment); Duncan, 391 U.S. at 165–166, 88 S.Ct. 1444 (Black, J., concurring); A. Amar, Bill of Rights: Creation and Reconstruction 163–180 (1998) (Amar); J. Ely, Democracy and Distrust 22–30 (1980); 2 W. Crosskey, Politics and the Constitution in the History of the United States 1089–1095 (1953). But even on that view, such a right would need to be rooted in the Nation’s history and tradition. See Corfield v. Coryell, 6 F.Cas. 546, 551–552 (No. 3,230) (C.C.E.D. Pa. 1823) (describing unenumerated rights under the Privileges and Immunities Clause, Art. IV, § 2, as those “fundamental” rights “which have, at all times, been enjoyed by the citizens of the several states”); Amar 176 (relying on Corfield to interpret the Privileges or Immunities Clause); cf. McDonald, 561 U.S. at 819–820, 832, 854, 130 S.Ct. 3020 (opinion of THOMAS, J.) (reserving the question whether the Privileges or Immunities Clause protects “any rights besides those enumerated in the Constitution”). Dobbs, 142 S. Ct. at 2248 n.22. For additional treatment, see Spindelman, supra note 13, at 141-63. ↩︎
103. The point has since been reinforced not only by Kavanaugh’s Rahimi opinion, elevating history-and-tradition to a generalized originalist test, but also by decisions like Muñoz, which apply the approach outside the abortion rights setting to an aspect of the right-to-marry. Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1817-18 (2024); see also id. at 1822-23, 1827. Dobbs’ footnote twenty-two starts the process by overriding the opinion’s repeated insistence that its history-and-tradition approach only applies to abortion rights. Dobbs, 142 S. Ct. at 2243, 2261, 2266-68, 2277-78, 2280-81. ↩︎
104. Dobbs, 142 S. Ct. at 2309. The connections are elaborated in Spindelman, supra note 13, at 143-44, 147, 173. ↩︎
105. Slaughter-House Cases, 83 U.S. 36, 80 (1873). ↩︎
106. Rahimi, 144 S. Ct. at 1918-19 (Kavanaugh, J., concurring). ↩︎
107. Id. at 1919 n.6. ↩︎
108. See Dobbs, 142 S. Ct. at 2248 n.22. ↩︎
109. Rahimi, 144 S. Ct. at 1919 n.6 (Kavanaugh, J., concurring). ↩︎
110. Slaughter-House Cases, 83 U.S. at 80; see, e.g., William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1188 (2024). ↩︎
111. Dobbs, 142 S. Ct. at 2248 n.22. On Kavanaugh’s lists, see, not only, for example, Rahimi, 144 S. Ct. at 1911, 1918-19 (Kavanaugh, J., concurring), and id. at 1917 n.5, but also Dobbs, 142 S. Ct. at 2308 n.3 (Kavanaugh, J., concurring), and Ramos v. Louisiana, 140 S. Ct. 1390, 1411-12 (2020) (Kavanaugh, J. concurring). See also Oral Argument Transcript at 79-80, Dobbs, 142 S. Ct. 2228 (No. 19-1392). ↩︎
112. Putting the point this way does not overlook the supports for this project elsewhere in Kavanaugh’s Rahimi concurrence or elsewhere in his bench work, including Dobbs. See supra 104 and accompanying text. ↩︎
113. See Dobbs, 142 S. Ct. at 2309 (Kavanaugh, J., concurring). ↩︎
114. Id.; Saenz v. Roe, 526 U.S. 489, 500-04 (1996). Dobbs’ footnote twenty-two and its treatment of the Fourteenth Amendment’s Privileges or Immunities Clause have so far had limited legal effect. One appellate concurrence in a case involving parental rights in a trans rights setting mentions Dobbs’ footnote twenty-two in a “cf.” citation while discussing both Fourteenth Amendment substantive due process and privileges or immunities. Littlejohn v. Sch. Bd., 132 F.4th 1232, 1262 (11th Cir. 2025) (Rosenbaum, J., concurring). Another decision mentions Dobbs’ footnote twenty-two for its history and tradition test. Arthur v. Krause, No. 1:24-cv-105, 2024 WL 4448826, at *5 n.2 (W.D. Mich. Oct. 8, 2024). A number of other decisions invoke Kavanaugh’s Dobbs concurrence for its treatment of the right to interstate travel. See, e.g., Yellowhammer Fund v. Marshall, No. 2:23-cv-00450-MHT, 2025 WL 959948, at *14-16 (M.D. Ala. Mar. 31, 2025); Yellowhammer Fund v. Marshall, 733 F. Supp. 3d 1167, 1187, 1201 (M.D. Ala. 2024); Govatos v. Murphy, No. 23-cv-12601, 2024 WL 4224629, at *16 (D. N.J. Sept. 18, 2024) (discussing Dobbs, 142 S. Ct. 2309-10 (Kavanaugh, J., concurring)). Other relevant, recent travel cases involving the decision to end an unwanted pregnancy include Matsumoto v. Labrador, 701 F. Supp. 3d 1069, 1073 (D. Idaho 2023) and Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, 309 A.3d 808, 820 (Pa. 2024). ↩︎
115. Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925). ↩︎
116. Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring in the judgment). This may help to frame the Supreme Court’s avoidance of the parental rights claim in United States v. Skrmetti, a case in which the U.S. Solicitor General’s certiorari petition focused on Fourteenth Amendment’s Equal Protection Clause claims. Petition for Writ of Certiorari at I, United States v. Skrmetti, 144 S. Ct. 2679 (2024) (No. 23-477) (mem.). The parental rights question was squarely posed by Petition for Writ of Certiorari on Behalf of L.W. at i, L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom. Skrmetti, 144 S. Ct. 2679 (No. 23-477), and its analytic independence from Fourteenth Amendment equality positions was tested in Brief Amicus Curiae of William Eskridge Jr., et al., Skrmetti, 144 S. Ct. 2679 (No. 23-477). A discussion of a very different instance of constitutional-doctrinal track-switching, one involving constitutional criminal procedure rules and Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona, 384 U.S. 436 (1966), is in Yale Kamisar, The Warren Court and Criminal Justice, in The Warren Court: A Retrospective 116, 120 (Bernard Schwartz ed., 1996). ↩︎
117. For an example suggesting these ideas are already in motion, see Ex parte J.R., No. SC-2024-0095, 2024 WL 4179216, at *2 n.1 (Ala. Sept. 13, 2024) (Parker, C.J., concurring). ↩︎
118. United States v. Rahimi, 144 S. Ct. 1889, 1921 (2024) (Kavanaugh, J., concurring). New York State Pistol & Rifle Ass’n v. Bruen, 142 S. Ct. 2111, 2126-34 (2022), is a precursor here. Additional notes about these possibilities are in Spindelman, supra note 13, at 160 & n.195. ↩︎
119. Rahimi, 144 S. Ct. at 1896 (majority opinion). The textual point includes the provisions of Kavanaugh’s Rahimi concurrence’s footnote six. See id. at 1919 n.6 (Kavanaugh, J., concurring). ↩︎
120. See, e.g., 1 Laurence H. Tribe, American Constitutional Law 1299-1301, 1308-09, 1317-31 (3d ed. 2000); Charles L. Black, Jr., A New Birth of Freedom: Human Rights, Named and Unnamed 52-85(1997); Erwin Chemerinsky, The Supreme Court and the Fourteenth Amendment: The Unfulfilled Promise, 25 Loy. L.A. L. Rev. 1143, 1146-47 (1992). ↩︎
121. Spindelman, supra note 13, at 145-46. ↩︎
122. See, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925). An elaboration of other family law and social rights that could soon be in play along these lines is found in Spindelman, supra note 13, at 155-63. ↩︎
123. See, e.g., Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 239-41 (2021). Other classic sources are collected in David Skillen Bogen, Privileges and Immunities: A Reference Guide to the U.S. Constitution 149-58 (2003). ↩︎
124. Transcript of Oral Argument at 7, McDonald v. City of Chicago, 561 U.S. 742 (2010) (No. 08-1521). Some conservative originalists have still not forgiven Scalia for the insult. See, e.g., Damon Root, Justice Scalia’s Faint-Hearted 14th Amendment Originalism, Reason: The Volokh Conspiracy (Mar. 3, 2010, 10:28 AM), https://reason.com/2010/03/03/justice-scalias-faint-hearted/ [http://perma.cc/L3CP-AXVX]; Q&A: Randy Barnett and Evan Bernick, C-SPAN, at 49:00 (Nov. 11, 2021), https://www.c-span.org/video/?515977-1/qa-randy-barnett-evan-bernick [https://perma.cc/‌PZ54-ZSQ2]. ↩︎
125. Cf. also Saenz v. Roe, 526 US 489, 511 (1999) (Rehnquist, C.J., dissenting). ↩︎
126. Scalia, The Lesser Evil, supra note 69, at 864. ↩︎
127. See McDonald v. City of Chicago, 561 U.S. 742, 758-59 (2010). ↩︎
128. See Rahimi, 144 S. Ct. at 1912 (Kavanaugh, J., concurring) (citing Scalia, The Lesser Evil, supra note 69, at 864); see also Edwin Meese, Address at the American Bar Association (July 9, 1985), https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/07-09-1985.pdf [http://perma.cc/‌XPU3-KACL]. ↩︎
129. For some history of originalism, see generally Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99 (2023). ↩︎
130. See Scalia, The Lesser Evil, supra note 69, at 852-53; Meese, supra note 128. ↩︎
131. Rahimi, 144 S. Ct. at 1912 (Kavanaugh, J., concurring) (citing Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 8 (1971)). ↩︎
132. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242-43 (2022); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125-26 (2022); Rahimi, 144 S. Ct. at 1902; Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1817-18 (2024). ↩︎
133. See Dobbs, 142 S. Ct. at 2242-43; id. at 2305 (Kavanaugh, J., concurring); Rahimi, 144 S. Ct. at 1912, 1920-22 (Kavanaugh, J., concurring). ↩︎
134. For a tally in the context of Dobbs, see Spindelman, supra note 31, at 1019. ↩︎
135. Rahimi, 144 S. Ct. at 1901 (majority opinion); id. at 1920 (Kavanaugh, J., concurring). ↩︎
136. For some discussion of a “judicial DNA,” see Robin West, Katrina, the Constitution, and the Legal Question Doctrine, 81 Chi.-Kent L. Rev. 1127, 1143 (2006). ↩︎
137. If the Court’s membership moves in more liberal or progressive directions, it is conceivable that the Kavanaugh concurrence’s lack of neutral principles might be counted against it and as cause to abandon its history-and-tradition originalist efforts. ↩︎
138. See Debates About Theory Within Critical Legal Studies, Lizard, Jan. 5, 1984, at 3. ↩︎
139. See, e.g., Rahimi, 144 S. Ct. at 1894-95; id. at 1906 (Sotomayor, J., concurring); Michael R. Ulrich, The Second Amendment’s Second Sex, 134 Yale L.J.F. 125, 143-45 (2024). ↩︎
140. See Rahimi, 144 S. Ct. at 1912, 1921-22. For Chief Justice Roberts’ view of judges as “like umpires,” see Confirmation Hearing on the Nomination of John G. Roberts, Jr., to be Chief Justice of the United States: Hearing Before the S. Comm. On the Judiciary, 109th Cong. 55 (2005) (statement of John G. Roberts, Jr.). ↩︎
141. The imagery is partly from Learned Hand, The Spirit of Liberty 138 (Irving Dilliard ed., 3d ed. 1960). ↩︎