Family, Faith, and Nation: The Roberts Court and the Global Pivot Against Legal Liberalism

The Roberts Court has veered sharply in a culturally conservative direction. More specifically, traditional solidarities of faith, family, and nation have been elevated as a constitutional matter above the individual autonomy interests that motivated the liberal Justices who steered the Court in the post-war decades. The Supreme Court’s jurisprudence in this register complements, and is reinforced by, changes in public law more generally—for example, in recent executive orders from the Trump Administration that amplify the same values. In legal scholarship, this jurisprudential shift is pervasively framed in terms of domestic electoral politics, particularly as a product of Republican dominance of the presidency and the Senate at key moments.

     But open out the analytic lens a few notches, 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 today. It is embedded in, and contributing to, a global phase shift in public law. Across many different countries, basic legal norms are moving sharply in the same culturally conservative direction. While the American Supreme Court is an influential participant in this global turn against legal liberalism, other nations’ courts, and legal advocacy organizations, have also adopted their own culturally conservative results. The Roberts Court hence must be understood as just 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 America, the Middle East, Africa, and Asia. We then offer an analytic framework for understanding the observed causes and effects of this global shift toward illiberal basic law. We show that this movement has no single, dominant 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, or via 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 Court reflects a dramatic sea change in global public law, toward illiberalism.