In a new article titled “How ‘History and Tradition' Rulings Are Changing American Law,” Emily Bazelon explores a new legal standard gaining traction among conservative judges that could potentially have significant implications for various aspects of American law. Bazelon highlights a case involving a group of L.G.B.T.Q. students at West Texas A&M University who faced opposition when planning a drag show to support suicide prevention and promote queer self-expression. The article delves into the legal battle that ensued, shedding light on the increasing use of the “history and tradition” test by conservative judges to potentially roll back modern developments in favor of upholding precedents from the distant past.
Introduction
In recent years, a new legal standard known as the “history and tradition” test has gained traction among conservative judges in the United States. This test allows judges to set aside modern developments in the law and rely on precedents from the distant past. This article will explore the controversies and implications surrounding the use of the “history and tradition” test, focusing on a specific case involving a drag show at West Texas A&M University.
Background
Drag show controversy at West Texas A&M University
In November 2022, a group of L.G.B.T.Q. students at West Texas A&M University, known as Spectrum WT, planned to organize a drag show to raise money for suicide prevention and promote queer self-expression. However, the conservative climate in Texas led to opposition against drag shows, with some arguing that they were harmful to children. Despite the students' efforts to ensure a family-friendly event, the university's president, Walter Wendler, decided to cancel the drag show.
The use of ‘history and tradition' test
The case at West Texas A&M University brought attention to the use of the “history and tradition” test by conservative judges. This legal standard allows judges to prioritize precedents from the distant past over modern developments in the law. It has been increasingly adopted by conservative judges who wish to overturn or limit certain rights and protections.
The Drag Show Case
Walter Wendler’s decision to cancel the show
President Walter Wendler's decision to cancel the drag show sparked controversy and legal action. In a statement on his personal website, Wendler described drag shows as “derisive, divisive, and demoralizing misogyny.” Despite the students' argument that the cancellation violated their First Amendment rights, Wendler maintained his decision to ban the event.
Spectrum WT’s lawsuit
Spectrum WT filed a lawsuit against Wendler, alleging viewpoint discrimination and arguing that the cancellation violated their freedom of speech. The group had a strong legal case, as the Supreme Court has consistently ruled that the First Amendment protects offensive speech on public university campuses.
Judge Matthew J. Kacsmaryk’s role
The case was assigned to Judge Matthew J. Kacsmaryk, a Trump-appointed judge known for his arch-conservative rulings. Judge Kacsmaryk had the opportunity to apply the “history and tradition” test to this case, which would allow him to disregard modern legal developments in favor of relying on past precedents.
History and Tradition as a Legal Standard
Definition and purpose
The “history and tradition” test involves looking to the historical origins and traditions surrounding a particular issue to determine its legal status. This test aims to restore the precedents of the distant past and minimize the impact of modern societal changes on legal interpretations.
Adoption by conservative judges
Conservative judges have increasingly embraced the “history and tradition” test as a means to steer legal interpretations in a more traditional and conservative direction. By prioritizing historical norms and traditions, these judges seek to limit the expansion of rights and protections that may conflict with their conservative ideologies.
Setting aside modern developments in the law
The “history and tradition” test allows judges to set aside recent legal developments and social progress, effectively rolling back certain rights and protections. This approach has sparked concerns among advocates for equality and progress, who worry that it may undermine the advances made in civil rights and other areas of law.
The Effects on American Law
Possible rollbacks on LGBTQ+ rights
The use of the “history and tradition” test could have significant implications for LGBTQ+ rights in America. By relying on past precedents, which often did not recognize or protect LGBTQ+ rights, judges may limit or roll back the progress made in advancing equality for the LGBTQ+ community.
Impact on gun restrictions
The “history and tradition” test could also impact gun restrictions in the United States. Advocates for gun control fear that by prioritizing the historical tradition of gun ownership, conservative judges may invalidate or weaken existing regulations, making it more challenging to enact new gun control measures.
Other potential changes in law
Beyond LGBTQ+ rights and gun restrictions, the use of the “history and tradition” test may lead to broader changes in various areas of law. Judges relying on this test could potentially undermine reproductive rights, environmental protections, and other legal protections that have developed in recent years.
Controversies and Criticisms
Concerns about preserving equality and progress
Critics of the “history and tradition” test argue that it poses a threat to equality and progress. By prioritizing historical norms, which often upheld discriminatory practices, judges may limit the advancement of civil rights and perpetuate systemic inequalities.
Challenges to the legitimacy of the ‘history and tradition' test
The use of the “history and tradition” test has sparked debates about its legitimacy as a legal standard. Critics question its objectivity and argue that it allows judges to impose their personal and ideological beliefs under the guise of relying on historical norms.
Political and Ideological Context
Conservative agenda on the judiciary
The adoption of the “history and tradition” test reflects a broader conservative agenda in the judiciary. Conservative policymakers and voters have prioritized appointing judges who align with their ideologies and can shape the law in a more conservative direction.
The role of appointments and nominations
The appointments and nominations of judges play a crucial role in determining the composition and ideology of the judiciary. The appointment of judges who support the use of the “history and tradition” test has fueled its growing acceptance among conservative judges.
Political clashes over judicial power
The use of the “history and tradition” test has intensified political clashes over the power and role of the judiciary. Critics argue that the use of this test allows judges to overstep their authority and impose their personal beliefs, undermining the principles of democracy and separation of powers.
Implications for First Amendment Rights
Speech protections on public university campuses
The “history and tradition” test has significant implications for First Amendment rights on public university campuses. By allowing judges to limit certain speech based on historical norms, the test may undermine the protection of offensive speech, which has been recognized as a fundamental aspect of the First Amendment.
The tension between free speech and offensive content
The tension between free speech rights and the potential harm caused by offensive content is a crucial consideration in cases involving the “history and tradition” test. Balancing these competing interests becomes increasingly challenging when judges prioritize historical norms and potentially limit protections for marginalized communities.
Legal Precedents and Precedence
The Supreme Court’s rulings since the 1970s
The Supreme Court has consistently recognized and protected offensive speech on public university campuses since the 1970s. These rulings have established a precedent that shields speech from censorship, even if it is offensive or conflicts with social conventions.
The significance of conventions of decency
Despite the protection of offensive speech, some Supreme Court decisions have acknowledged the importance of conventions of decency. This recognition seeks to strike a balance between free speech and preventing harm to individuals or perpetuating discrimination.
The conflict between past and present precedents
The use of the “history and tradition” test creates a conflict between past and present precedents. By prioritizing historical norms, judges may overturn or undermine more recent rulings that have expanded rights and protections for marginalized communities.
Conclusion
The use of the “history and tradition” test by conservative judges has the potential to reshape American law and roll back certain rights and protections. It poses challenges to equality, progress, and the preservation of First Amendment rights. As the debate continues, it remains essential to examine the implications of this legal standard and the potential consequences for society as a whole.
