Publication Date

2025

Publication Title

Public Law & Legal Theory

Abstract

The Roberts Court has veered sharply in a culturally conservative direction. Traditional solidarities of faith, family, and nation have been elevated above the individual autonomy interests that motivated the justices in the twentieth century. The Supreme Court’s jurisprudence in this vein complements and is reinforced by changes in public law more generally—for example, in recent executive orders that amplify the same values. In legal scholarship, this jurisprudential shift is pervasively framed in terms of domestic electoral politics, in particular as a product of Republican dominance of the presidency and the Senate at key moments.

But expand the analytic lens outward, and it quickly becomes clear that the Roberts Court’s new emphasis on values of family, faith, and nation is in no way unique to the United States. It is embedded in, and contributing to, a global phase shift. Across many different countries, basic legal norms are moving sharply in the same culturally conservative direction. While our Supreme Court is an influential participant in this global turn against legal liberalism, other nations’ courts, and legal advocacy organizations, have adopted their own culturally conservative results. The Roberts Court hence must be understood as one element of a larger, and even more dramatic worldwide change in public law more generally. This Article analyzes this international dimension of the Roberts Court’s turn to family, faith, and nation. It first situates our local shift in constitutional jurisprudence in the context of a broader jurisprudential pivot toward illiberal ends across diverse geographic and cultural domain—including Europe, Latin American, the Middle East, Africa, and Asia. We then offer an analytic framework for understanding the causes and effects of this global shift toward illiberal basic law. We show that this movement has no single causal pathway, but that there are several different “diffusion” mechanisms, including common causes and self-reinforcing feedback mechanisms. Nations experiencing an illiberal legal shift are subject to common political and socioeconomic pressures. Further, judges and political actors learn from peer institutions and through transnational networks of political activists. Our analysis yields a more robust causal account of the emergence of a distinctively illiberal shift in constitutional jurisprudence, not just in the United States, but globally—and a sharper account of the Roberts Court’s role in that startling, novel international context. Hardly an outlier, the American Supreme reflects a dramatic sea change in global public law, toward illiberalism.

Number

25-41

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