Between Formalism and Conservatism: The Resurgent Legal Formalism of the Roberts Court
It is often said that the Roberts Court is the most conservative Supreme Court since the 1930’s. But the Roberts Court is not only very conservative, it is also very formalistic. By this I mean that it makes many decisions that rely exclusively on narrow fact-like considerations, like a dictionary definition or some historical circumstance,while rejecting any deliberations over the merits of cases—including time-honored considerations like expected consequences, the legislative purpose or history of a statutory or constitutional provision, changed conditions, coherence with other laws, or, of course, considerations of justice.
The two most famous and comprehensive formalist methodologies are textualism in the statutory domain and originalism in the constitutional one. Each seeks to reduce legal interpretation, respectively, to an exercise in following semantics and syntax, or to a determination of historical facts. But formalism can also assume a less comprehensive form—as when a case is decided by strict adherence to a rigid rule, coupled with a refusal to consider the merit of a possible exception. For example, the claim (made in a recent Supreme Court case) that content-based restrictions of speech are constitutional only if they have a historical pedigree—no matter how unjustified they may be, or how justified a non-historical exception may be—is such local formalism.
