Our American Legal Tradition Is Not the Warren Court’s Tradition

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? 

This inquiry is further complicated because most Americans today have no living memory of the world before the Warren and Burger Courts. People raised and acculturated under these juristocratic understandings of speech, religion, and sex do not know any other way. Consider abortion, for example. Starting with Roe v. Wade (1973), every woman in America was raised with the understanding that the Supreme Court guaranteed her access to a pre-viability abortion. Is it any wonder that Planned Parenthood v. Casey (1992) observed that “an entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.” Roe replaced an American tradition of morality-based self-governance with a tradition of dignity-imposed judicial rule. Perversely, Casey cited the inversion of democracy as a reason to maintain Roe. 

By the time the Supreme Court decided Dobbs v. Jackson Women’s Health Organization (2022), there were virtually no remaining women of reproductive age who lived in a world without Roe. The Dobbs dissenters argued that the half-century following Roe became a legal tradition unto itself that warranted protection. They wrote, “Roe and Casey have been the law of the land for  decades, shaping women’s expectations of their choices when an unplanned pregnancy occurs.” Thankfully, the Supreme Court rejected that canard and explained that the relevant litmus test for tradition refers to the decisions made by the people, and not the mandates imposed by the judges. Now, in the wake of Dobbs, people have struggled to govern on a very contentious issue. I think the pro-life movement was woefully unprepared for the moment, as the number of abortions have increased. Alas, we only have ourselves to blame, and can no longer scoff at elites like Justices Harry Blackmun or Anthony Kennedy.This dynamic is even more stark in the context of the Establishment Clause. Both of my parents were born in New York in 1952. Until the fifth grade, they began each school day by hearing a prayer. Of course, Engel v. Vitale (1962) declared New York’s prayer law to be a violation of the Establishment Clause. A decade later, Lemon v. Kurtzman (1971) prohibited any action that entangled church and state.  

These decisions distorted the Constitution, but at the time, they were arguably well-intentioned. The Warren and Burger Courts feared that mingling government and religion would allow the state to corrupt faith. In Engel, Justice Black wrote that the “separation of church and state . . . was necessary in order to protect the church from the danger of destruction which . . . inevitably flowed from control by even the best-intentioned civil authorities.” And in Lemon, Chief Justice Burger concluded that “the highways of church and state relationships are not likely to be one-way streets, and the Constitution’s authors sought to protect religious worship from the pervasive power of government.” 

These justices were ostensibly trying to safeguard religion from government interference, rather than disregarding religion. It is important to remember that the Justices wrote at a time when religion predominated society, and secularism was on the fringe. Remember that states chose to mandate school prayer and fund religious schools. With the benefit of hindsight, I doubt the Justices could have anticipated how their decisions would contribute to a rapid secularization of our society. Armed with the Lemon test, governments devolved from aiding religion to excluding religion. Whether well-intentioned or not, the Warren and Burger Courts enabled much of the moral decline over the past five decades. The same Court held that the Constitution absolutely requires the states to allow the termination of the unborn but unequivocally bans purchasing math books for a religious school. How else would these sorts of rulings affect our society?  

Law is both upstream and downstream from culture. In the span of five decades, New York went from mandating prayer in schools to forcing nuns to pay for abortions. Even worse, the Court taught people that religion was something to be shunned and rooted out of society. Engel and Lemon bred entire generations of students to be overly sensitized about religion. It is no surprise they filed lawsuits over the slightest provocations. Look no further than Lee v. Weisman, which was decided a few days before Planned Parenthood v. Casey. A high school in Rhode Island invited a reform Jewish rabbi to deliver a fairly milquetoast benediction without any real references to religion. Deborah Weisman, a Jewish student, objected that she was being coerced into sitting through a theological indoctrination. The Supreme Court ruled in her favor. Weisman was acculturated under the shadow of the Warren and Burger Courts to be hypersensitive to even the slightest breach of the purported wall between church and state. She could have just sat there quietly and ignored the remarks, as all the other students did. (I’ve tuned out many graduation speeches over the years.) Instead, Weisman set a landmark precedent before the Supreme Court.  

The contrast between Weisman and Casey was stark. In the span of a week, the Court ruled that a state could not require a wife to notify her husband that she planned to terminate their unborn child, but the Court held that a high school could not host a neutral benediction during graduation. Casey declared, “Our obligation is to define the liberty of all, not to mandate our own moral code.” But that proclamation was always sophistry. Justice Scalia’s Casey dissent observed that the Court “ignore[d] a long and clear tradition clarifying an ambiguous text . . . five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies.” The Court established a very clear code of what conduct was moral (abortion) and what conduct was immoral (prayer). Unfortunately, our society was unable to set its own moral standards based on its traditions. 

The Supreme Court has taken an important step in rejecting this Court-imposed code of morality and also reducing this over-sensitization. Kennedy v. Bremerton School District (2022) concerned a high school football coach who would pray quietly at the 50-yard line after games. No students were required to pray with Coach Kennedy, but some did so voluntarily. The school district worried that students might feel coerced into praying, perhaps out of fear of losing the coach's favor. Citing the Lemon test, the school district banned Kennedy from praying. The Supreme Court, in a stirring decision by Justice Neil Gorsuch, declared that the Lemon test had been abandoned and could not justify the school district’s actions. In a direct rebuke to Engel and Lemon, the Court invoked the “history and tradition” of religion in our polity to support the Coach’s prayer. Here, the prayer was nowhere close to “impermissible government coercion.” But Kennedy did not alter the sensibilities of generations of students who still see any religion in public as an unconstitutional offense.  

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. 

For the first time in generations, the people can govern themselves. Eventually, equilibrium on speech, religion, and sex will be reached. Justice Scalia laid out the stakes clearly in his dissent from Obergefell v. Hodges (2014):  

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. 

For abortion, the Ten Commandments, and more, the people should decide for themselves. In our 250th year of independence, the people deserve this freedom. 

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, is a contributing editor to Civitas Outlook, and is an adjunct fellow at the Manhattan Institute.