
While the Roberts Court’s favorite new legal test promises objective facts, what it actually delivers is unchecked judicial power.
Eric Scarffe
August 6
(Photo illustration by Bill Kuchman/The Bulwark | Photos: Getty, Shutterstock)
WHEN THE SUPREME COURT CLOSED its most recent term, one lesson stood out: The Court’s most consequential decisions increasingly arrive dressed in the language of history. Whether the issue is abortion, administrative power, gun regulation, or substantive due process, the justices present themselves less as constitutional decision-makers than as constitutional archaeologists: excavating answers to questions that history supposedly settled long ago. Yet far from removing values from constitutional adjudication, the use of such history has merely hidden them from view.







