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36 Yale J.L. & Human. 1 (2025)

handle is hein.journals/yallh36 and id is 1 raw text is: Tradition in Constitutional Adjudication Felipe Jimenez* Abstract. The Supreme Court has increasingly relied on the notion of tradition to decide questions about constitutional rights. This approach is not implausible. Constitutional adjudication should be attentive to the history of social practices. But traditions are rarely fixed. They are open-ended, constantly evolving, and subject to normative contestation. Judges, moreover, are part of a distinctive legal tradition with its own standards and commitments. Thus, the idea of tradition should not lead to the inexorable authority of past social practices over contemporary adjudication. It should instead lead to a recognition of the space for normative judgment in the context of constitutional rights adjudication. We should be troubled by the power of judges to make normative judgments about contested social practices. But we should address that concern directly. An emphasis on the authority of legal reasons and on the role of legal expertise in constraining and guiding judicial decision- making responds to that concern. Moreover, it does so without falling into the Court's denial of interpretive freedom and its embrace of the illusory constraint of history and tradition. INTRODUCTION Some scholars argue that the Supreme Court has recently adopted a new traditionalist approach in constitutional law.' Other theorists disagree. They argue that cases like Bruen2 and Dobbs3 -in which the Court held that * Associate Professor, University of Southern California Gould School of Law; Profesor Adjunto Extraordinario, Universidad Adolfo Ibfnez. For comments on previous versions of this Article, many thanks to Jordan Barry, Charles Barzun, Evan Bernick, Rebecca Brown, Mathieu Carpentier, Jake Charles, David Cruz, Marc DeGirolami, Alma Diamond, Angel Diaz, Blake Emerson, Erin Miller, Marcela Prieto, Richard Re, Mark Schroeder, Francisco Urbina, Nina Varsava, Sergio Verdugo, and Mary Ziegler, as well as participants at workshops at Tulane Law School and the ICON-S Conference in Santiago, Chile. For research assistance, I am thankful to Ella Henry. I also thank the Association of American Law Schools for recognizing this Article with an Honorable Mention in the AALS Scholarly Papers Competition, and the editors at the Yale Journal of Law and the Humanities for their excellent editorial work. 1. See, e.g., Marc DeGirolami, The Traditions ofAmerican Constitutional Law, 95 NOTRE DAME L. REV. 1123 (2020); Marc O. DeGirolami, Traditionalism Rising, 24 J. CONTEMP. LEG. ISSUES 9 (2023). 2. New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022). 3. Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022). 1

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