The Volokh Conspiracy

I've been giving a lot of thought to the Ten Commandments case that should be appealed to the Supreme Court this summer. Very few people alive today can remember a world before the Warren Court established the separation of church and state. Likewise, prior to Dobbs, very few women of reproductive age could remember a time before the Burger Court established a constitutional right to abortion. The Supreme Court often considers how longstanding a legal tradition is. But many of the traditions established by the Warren and Burger Court stretch back five, six, and even seven decades. In a new Civitas Outlook, essay, I explain that the relevant tradition is the tradition the people established, not the tradition the Court imposed.

Here is the introduction:

In recent years, the Supreme Court has followed a tripartite approach to originalism. First, the Court asks whether the plain text of the Constitution neatly resolves the case. Second, if textualism does not provide a clear answer, the Court considers the history that predated the adoption of the relevant text—what did people say and do before ratification. Third, if the dispute remains unresolved based on the text and history, the Court will consider how the people understood and implemented that text after ratification — the so-called tradition.

The third inquiry, however, faces a practical problem: the Warren and Burger Courts. Between the 1950s and 1980s, the Supreme Court actively and brazenly altered nearly every facet of our polity. Longstanding traditions were disregarded, and the justices instead imposed their modern sensibilities on the American people. The examples are legion. The Court completely rewrote how our society approaches speech, religion, sex, and more. Today, we are still living in the shadow of those Platonic guardians. Indeed, court-created "traditions" from those decisions now stretch nearly three-quarters of a century. As America celebrates its 250th birthday, the courts face a conflict. Which tradition prevails: the first 175 years when the people were allowed to govern themselves, or the last 75 years when we lived under judicial rule?

And here is an excerpt on the Ten Commandments case:

The next Establishment Clause case to reach the Supreme Court will afford the justices an opportunity to correct course. Texas, my home state, required all public schools to post copies of the Ten Commandments in classrooms. Teachers are not required to read the decalogue or say anything else about them. It is a passive display that students will simply ignore, as they do most things that are not on their phones. Yet, Texas parents contend that this mere posting violates the Establishment Clause. They argue that students may feel coerced into engaging in religion, or that this religious text may intrude on how parents teach their children their own faith. The Fifth Circuit, sitting en banc, upheld Texas's law. This case will surely be appealed to the Supreme Court in the coming months.

This Texas dispute can be resolved based on tradition. But which tradition? Before the Warren Court intervened, many public schools required students to recite a prayer at the start of every day. Alas, the Warren Court obliterated that practice based on a defunct reading of the Establishment Clause. What is the relevant tradition? Does the Court focus on the judge-imposed separationism of the Warren and Burger Courts in the six decades since Everson? Or is the relevant tradition what the people themselves chose to do before the Supreme Court intervened? I think the answer has to be the latter. The modern day sense and sensibilities of people clinging to the moral code of the Warren Court cannot redefine the Establishment Clause.

The people of New York in the 1960s thought that a prayer in the classroom would be a useful way to promote morality and solemnize the day. The vast majority of people did not object to the law. That a few students, coupled with sympathetic justices, rejected that principle should have no bearing on our constitutional traditions. Indeed, the Texas law is proof that the Warren Court was wrong. Seven decades later, the people are still pushing back against this black-robed rule. The Ten Commandments have governed civilization since time immemorial. It is little wonder that opposition to Everson has persisted in exile for six decades.

This approach does not require the Court to reverse Everson, at least for now. Rather, each case should be decided based on the actual traditions of the people, and not the traditions thrust upon America by elite judges. The people should learn how to govern themselves again. There will be some discomfort with removing the shackles imposed by the Warren and Burger Courts. Fights over abortion after Dobbs illustrate this conflict. I don't doubt that some students will be bothered by the Ten Commandments, but eventually they'll get used to them. Or, if the discontent is strong enough, the political process can correct course.

This piece will serve as a basis for my forthcoming amicus brief in the Ten Commandments case.