The Use and Abuse of Tradition: A Comment on DeGirolami’s Traditionalism Rising

Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method.” The paper is a valuable contribution that documents an important trend. The Court is in fact invoking tradition with remarkable frequency. But it is a mistake to call what the Court is doing a single “methodology.” Tradition is relevant in different ways in different contexts. It is confusing to conflate them.