Conservatives on the John Roberts Supreme Court are increasingly setting aside established legal analysis and precedent in favor of historical arguments, a shift that one academic argues represents a fundamental transformation of American constitutional law.

The "history and tradition" test gained its modern prominence in Justice Clarence Thomas's majority opinion in New York State Rifle & Pistol Association v. Bruen (2022), which held that modern gun regulations must be consistent with the historical tradition of firearms regulation at the founding. Since then, lower courts have struggled to apply the standard, with judges across the ideological spectrum issuing conflicting rulings on what qualifies as a sufficiently analogous historical regulation.

Eric Scarffe, an associate professor of philosophy at Florida International University, says the Court's conservative majority is using history to accomplish what judicial philosophy previously did not: removing judgment from judging.

"Rather than promoting judicial restraint, key cases reveal how the 'history and tradition test' has been weaponized to enable one of the most radical revisions to this nation's constitutional order since the New Deal," Scarffe argued. "It has been used not only to overturn previous decisions and precedent, but also to fundamentally shift the way the Court engages in judicial review."

The New Deal comparison is significant: in the late 1930s, the Supreme Court reversed course after striking down early New Deal legislation, ultimately deferring to Congress on economic regulation and dramatically expanding the scope of federal power — a constitutional settlement that endured for decades.

Courts have traditionally weighed competing interests, assessed evidence, and openly confronted conflicting constitutional values. Under the history and tradition approach, however, the Court evaluates laws based on whether sufficiently similar regulations existed at the time of the nation's founding.

In Wolford v. Lopez, for example, the Court struck down Hawaii's restrictions on carrying firearms on private property open to the public. The decision rested entirely on whether a comparable restriction existed during the founding era. Because many modern laws did not exist at the nation's founding, Scarffe contends this framework can be used to invalidate a wide range of legislation.

In Dobbs v. Jackson Women's Health Organization, Scarffe notes, the Court did not examine whether abortion restrictions infringed on choices central to dignity and autonomy.

"Rather, it asked whether a constitutional right to abortion was deeply rooted in the nation's history and tradition," Scarffe said. "The Court's answer, of course, was that it was not."

Scarffe argues that this outcome appears to be the very purpose of employing the history test.

"First, if we take the history and tradition test to its logical conclusion, more than just abortion rights are at stake," he said. "Indeed, it seems unlikely that you would find deeply rooted in this nation's history rights to the use of contraceptives, gay marriage, interracial marriage, or even the idea that rights articulated in the Constitution place limits on state governments (as opposed to just the federal government)."

Second, Scarffe observes that the test is no longer confined to so-called unenumerated rights not explicitly written into the Constitution, such as abortion or physician-assisted suicide. Instead, it is being applied to strike down laws enacted by federal and state governments, including the Voting Rights Act and Hawaii's gun legislation.

"Far from being a tool to let states decide for themselves, this past term the history and tradition test has morphed into a tool for the conservative majority to overturn progressive precedent and progressive legislation," Scarffe warned.

He added: "The Court, in short, is making perhaps its strongest case to date for the need for its reform, should Democrats take back the House this fall — for if the Court now claims authority to strike down any legislation that does not fit its politics, there appear to be few other choices left."