Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring and filling gaps in the judicial architecture, that practice is, in contrast to the practices in Noel Canning and Zivotofsky, rarely entrenched against ordinary legal change. Second, the authority of historical practice in high-profile separation-of-powers disputes generally rests on a theory of acquiescence by one branch in the other’s actions; the federal courts cases, in contrast, ignore acquiescence and instead ground practice’s authority in its longstanding observance.The use of historical practice in federal courts law rests on a theory of prescription — that is, past practice derives authority from its sheer past-ness. This essay explores the centrality of prescription in Burkean political theory and suggests that cases relying on past practices can contribute to the development of a distinctively Burkean theory of constitutional law. This theory suggests that past practice plays an important constitutive role, but as in the federal courts cases, that role is not entrenched against ordinary legal change. The fact that historical practice is not entrenched — and can be changed through democratic processes — helps to answer several key criticisms of relying on practice in constitutional adjudication.