Reva Siegel
Two years ago the Supreme Court overturned the abortion right
in Dobbs v. Jackson Women’s Health Org. Today, it marked that
anniversary by taking for argument in the coming Term United States v. Skrmetti, a case authorizing a Tennessee ban
on gender affirming care. Skrmetti draws authority from Dobbs: both
Dobbs’s reasoning about level of generality in
substantive due process law as well as its dicta reviving a 1974 decision on equal
protection and pregnancy discrimination. The Sixth Circuit decision in Skrmetti authorized a ban on gender-affirming
care that could put in play both the Court’s substantive due process decisions
and its equal protection-sex discrimination decisions.
In 2022, the conservative Justices embraced history-and-tradition standards that tied the Constitution’s meaning to particular historical facts, both in Dobbs and in a Second Amendment decision New York State Rifle & Pistol Ass’n v. Bruen. The Justices claimed that tying judicial decisions to particular facts in the past would constrain judges and prevent them from acting on their policy preferences. This debate over “levels of generality” in Dobbs has continued to structure debate this Term. It appeared in debates over interpreting the 14th Amendment’s liberty guarantee in Department of State v. Muñoz, and in United States v Rahimi, the several Justices invoked “levels of generality” (both expressly and implicitly) in debating interpretation of the Second Amendment.
Dobbs justified overturning Roe by counting states banning abortion in
1868 and claiming that this turn to historical particularism would constrain
the Justices: “[W]hen the Court has ignored the “[a]ppropriate limits” imposed
by “ ‘respect for the teachings of history, it has fallen into the freewheeling
judicial policymaking that characterized discredited decisions such as Lochner
v. New York.” Justice Alito presented the Court’s appeal to historical facts
as insuring that the judges would not engage in “freewheeling judicial
policymaking.” He expressly invoked the levels of generality debate: “[A]ttempts
to justify abortion through appeals to a broader right to autonomy and to
define one’s “concept of existence” prove too much. . . Those criteria, at a
high level of generality, could license fundamental rights to illicit drug use,
prostitution, and the like. None of these rights has any claim to being deeply
rooted in history.”
In a forthcoming paper The “Levels of Generality” Game, or
“History and Tradition” as the Right’s Living Constitution, I challenge the judicial-constraint
justification for the Court’s particularist accounts of the nation’s history
and traditions in Dobbs and Bruen. I show that the changes in
history-and-traditions case law that appeared in 2022 as President Trump
reshaped the Court emerged from long-running argument about the exercise of
judicial discretion in vindicating rights—the so-called “levels of generality”
debate. These shifts in the level of generality are quite self-conscious, the
fruit of a dispute between constitutional liberals and conservatives that has
been running since at least 1980. I
argue that the shift to low levels of generality to justify changes in the law conceals
rather than constrains judicial discretion and values-based reasoning.
When the Justices deflect responsibility for a value-based
decision onto facts in the past, they are engaging in the politics of constitutional memory—playing “memory games”
and “ventriloquizing” the past—as I observed of Dobbs two summers ago. In The History of History and Tradition and again in The “Levels of Generality” Game I explain the structure of these
conservative constitutional memory claims: “What appear in constitutional
argument as positive, descriptive claims about the past are often normative
claims about the Constitution’s meaning.” Justices can take responsibility for
value-based arguments expressed in claims about the past—or they can impute
responsibility for their decisions to facts about the nation’s history and
traditions (which the Justices themselves play a significant part in
describing).
We now have some empirics showing how claims tying decisions
to particular facts in the past can conceal value-based judgment in law. Rebecca
Brown, Lee Epstein & Mitu Gulati have just posted Guns, Judges, and Trump, a new paper analyzing the impact of
Heller and Bruen on gun rights cases. The paper measures “the
number of cases in the courts but also the partisanship displayed in the
application of Bruen. And that partisanship increase was particularly
large on the part of Trump-appointed judges.”
These findings suggest that dialing down the level of generality and
engaging in historical particularism does not constrain the expression
of value. Brown, Epstein & Gulati draw from their data a conclusion about
Rahimi:
the root cause of Bruen’s effects—the discretion it
places in judges to decide whether a law fits within our “historical tradition
of firearm regulation”--is not much diminished. The test is now “whether
the new law is ‘relevantly similar’ to laws that our tradition is understood to
permit.” This changes the focus of argument, perhaps, from identifying a
historical “twin” to deciding at what level of generality to describe the law
in question.
In United States v. Rahimi Justices Gorsuch and Kavanaugh have
again invoked the judicial-constraint justification for the turn to history,
even more emphatically.
Critics of these claims, both on the Court and off the Court, understand. In Department of State v. Muñoz,
when the conservatives found, under Glucksberg’s history and tradition analysis, no
constitutional protection for noncitizens to enter the country with their
citizen spouses, Justice Sotomayor urgently dissented. Justice Sotomayor invoked
the lessons of Dobbs to spotlight
the levels-of-generality threat that Muñoz posed to the right to marry in Obergefell v. Hodges: “The majority . . . makes the same fatal
error it made in Dobbs: requiring too “‘careful [a] description of the
asserted fundamental liberty interest.’”
Given Justice Sotomayor’s warning
in Muñoz, it seems not accidental that the Court chose Dobbs’s second anniversary to put Skrmetti on the docket for decision. In deciding Skrmetti in the Sixth Circuit, Judges Sutton and Tharpar announced
that “level of
generality is everything in constitutional law.” And they drew
connections between Dobbs and the equal protection decisions Geduldig v. Aeillo and United States v.
Virginia in the course of authorizing a ban on
gender-affirming care.