Jacob D. Charles (Pepperdine University – Rick J. Caruso School of Law) has posted Equity’s Bruen Moment: Trump v. CASA and Lessons for the Future of History & Tradition (77 Fla. L. Rev. __ (forthcoming 2025)) on SSRN. Here is the abstract:
In Trump v. CASA, the Supreme Court expounded on and applied a methodological framework that mimics the test the Court has recently begun deploying in Second Amendment and other individual-rights cases. That test has three components: (1) search for historical analogues; (2) apply historical principles; and (3) abjure contemporary concerns that can be labeled “policy” considerations. Bruen’s echoes in CASA are noticeable and telling. So too are the lessons that CASA can teach about how the Court’s approach to history and tradition is continuing to evolve.
This Article analyzes CASA as a window into the Court’s working out—and further cementing reliance on—historical tradition as a method of legal interpretation. Although CASA arises in the context of a statutory case about equitable remedies, the methodological moves in the majority opinion map onto the moves made in constitutional cases applying Bruen’s method. Justice Barrett’s opinion for a majority in CASA thus provides hints about how she and the other conservative justices may approach future questions about historical evidence, analogical similarity, immanent principles, policy considerations, and levels of generality.
The Article draws four lessons from unpacking CASA’s history and tradition approach. First, CASA illustrates the dangers of historical-analogical reasoning that is not tied to transparent metrics of relevant similarity. Second, the decision reaffirms that historical silence is often fatal to modern exercises of government power, even without explaining why. Third, CASA confirms that a method meant to tie government officials to past authority will pay little heed to the vast change in American society, law, and politics since the 18th century. Fourth and finally, CASA may signal a troubling new expansion of what counts as “policy” reasons excluded from the legal analysis.
Recommended.