Rather than continuing to apply the Lemon Test the Court should rely on an accurate account of the founders’ understanding of the Establishment Clause.
How might we distinguish the traditionalist judicial decision? It is not my intention to offer a comprehensive catalog of abstracted characteristics, in part because it may be better to focus on a court’s own perception of its role in the language of its opinion. But some general observations about traditionalism may be helpful.
At a very basic level, one distinctive feature of the traditionalist decision is that it is self-consciously so. That need not mean that a court uses the word “traditionalist” or its cognates in describing its method (though sometimes it will), but it should mean that in deciding as it does, a court is both (1) aware of the continuity of its decision with past authority, and (2) intentional about maintaining, transmitting, and re-cementing that past authority in its own decision. Another way of thinking about this is that a court must be cognizant of time (or, as Acton said, the chronicity of tradition) and find normative force in it.
If I dress with a coat and tie every time I teach a class, that is not enough for my sartorial selections to be traditional. It is still not enough if it can be shown empirically that others before and after me have made the same choices. What makes the choice traditional is the social or cultural meaning of my dressing this way. The choice of dress evinces a social awareness of continuity with the past and is pursued intentionally, because of some normative power within the long-standing practice (because dressing with a coat and tie is neat, or because it is professional, or because it is elegant, or because predecessors whom I admire dressed in this fashion, and so on). I dress in this way intentionally to retransmit the past to the present because I believe there is value both in the choices of the past and in their continuity. This self-consciously and normatively chronic quality is probably not the only element comprising the traditionalist view; but it is an important one.
Some might say that the existence of any substantive reasons deprives the practice of dressing with a coat and tie of its traditionalism, because traditionalism implies that a belief or practice is transmitted mindlessly or without any reason. But this strikes me as altogether wrong. In an old essay, Samuel Coleman once gave the following example:
Turkish farmers leave the stones on their cultivated fields. When asked why, they say that is the way it has always been done and that it is better that way. In point of fact, it is. When U.N. agronomists, after considerable exhortation, persuaded some young Turks to remove the stones from their fields, their crops suffered. Apparently the stones help condense and retain the dew in the arid climate, but this was unknown. It may have been known to the originators of the custom, for there is evidence that it was known in biblical times. This apparent fact had been forgotten, while the practice persisted.
Was the practice of laying stones not a tradition when the reason for it was known and passed on? Did it become a tradition only when the reason was forgotten? Is it now no longer a tradition because of the adventitious intervention of the U.N.? The practice itself, as understood by the practitioners of it, is unchanged. No, says Coleman, “we would avoid all sorts of muddle if we did not speak of traditions being transmuted into non-traditions by confirmation of the proposition believed or the practice followed.” There can be, and often is, reason in tradition.
Understood in these terms, traditionalism in judicial decision-making might be conceived in at least a few ways.
First, a court might be traditionalist in its judicial methods. I would think many decisions of trial and intermediate appellate courts exhibit traditionalist features. Consider only one example: the standard of review. When an appellate court applies a standard of review that is anything less rigorous than de novo, it is acknowledging the existence of past authority (both the norms of deference demanded by the standard itself and the particular prior decision it is reviewing) and it is making a choice to retransmit those norms in its own decision. One might explain these decisions on the crude grounds of fear of reversal or other negative consequence. One might also explain them on the sounder grounds of administrative efficiency. Or one might say that courts are simply obeying higher, binding authority when they apply a particular standard of review. But none of these explanations do full justice to the sense in which past authority—“doctrine,” to use a term that is fully at home in only two fields, law and theology—is regarded by the legal system as inherently worthy of respect.
Second, a court might be traditionalist as to the substance of its decision-making, recognizing and transmitting American historical traditions and practices. One can see this type of traditionalism on occasion at the Supreme Court. Decisions that are traditionalist in this way and that will be familiar to readers would include: Town of Greece v. Galloway, a case that is especially useful to distinguish certain varieties of originalism from traditionalism; Washington v. Glucksberg; and, in a more complicated way, NLRB v. Noel Canning. Not that I am not defending these cases—only identifying them as traditionalist.
In my next post, I’ll discuss one of the more interesting, and somewhat less well known, traditionalist decisions of the past few decades: the plurality opinion in Burnham v. Superior Court, which involved a fascinating exposition of the Court’s contemporary mantra for a state court’s exercise of personal jurisdiction over a defendant: that it must accord with “traditional notions of fair play and substantial justice” (emphasis in the original).