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Credit...Photo illustration by Ricardo Tomás
HOW ‘HISTORY AND TRADITION’ RULINGS ARE CHANGING AMERICAN LAW
A new legal standard is gaining traction among conservative judges — one that
might turn back the clock on drag shows, gun restrictions and more.
Credit...Photo illustration by Ricardo Tomás
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By Emily Bazelon
Emily Bazelon is a staff writer for the magazine and the Truman Capote fellow
for creative writing and law at Yale Law School. Her recent features on the
Supreme Court have focused on its rightward lurch, its struggle with affirmative
action and the political clashes over its power.
* April 29, 2024
In November 2022, a group of L.G.B.T.Q. students at West Texas A&M University
started planning a drag show for the following spring. They wanted to raise
money for suicide prevention and stand up for queer self-expression at a time
when conservatives in Texas, in the name of protecting children, were mobilizing
to shut drag shows down.
LISTEN TO THIS ARTICLE, READ BY ALMARIE GUERRA DE WILSON
Listen 19:50
The student group, Spectrum WT, set a few guidelines. The show would be “PG-13,”
the students told the university. Kids under the age of 18 — the students had in
mind the siblings of a performer — could come only if they were accompanied by a
parent or guardian.
Despite this plan, the president of West Texas A&M, Walter Wendler, announced in
March 2023 that he was barring the event from campus. In a statement on his
personal website, Wendler called drag shows “derisive, divisive and demoralizing
misogyny.” Spectrum WT sued, arguing that Wendler’s decision to cancel the show
was a “textbook” example of discriminating against speech based on viewpoint.
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Legally speaking, Spectrum WT had a strong case. Since the 1970s, the Supreme
Court has ruled that the First Amendment protects speech on public university
campuses, “no matter how offensive” and despite “conventions of decency,” as two
decisions put it. Wendler acknowledged that he was refusing to allow the drag
show to take place “even when the law of the land appears to require it.”
But the lawsuit landed on the docket of Judge Matthew J. Kacsmaryk, a Trump
appointee to the federal bench in Amarillo who is the author of several sweeping
arch-conservative rulings. And in the drag-show case, Judge Kacsmaryk had a new
tool, supplied by the Supreme Court. Known as the “history and tradition” test,
the legal standard has been recently adopted by the court’s conservative
majority to allow judges to set aside modern developments in the law to restore
the precedents of the distant past.
Subscribe to The Times to read as many articles as you like.
Emily Bazelon is a staff writer at The New York Times Magazine. More about Emily
Bazelon
A version of this article appears in print on May 5, 2024, Page 40 of the Sunday
Magazine. Order Reprints | Today’s Paper | Subscribe
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