Law Prof: If Recent SCOTUS Decisions Relied on Bad History, Opponents Need to Come Up with a Better VersionBreaking News
tags: legal history, Supreme Court, originalism
The Supreme Court’s seismic term was notable not only for the decisions it reached but also how it reached them: making extensive use of history. This might seem like a bad development — turning back the clock on societal progress and calling for judges to do hackish, “law-office history.” But it is not. The question going forward is not whether the court should use history but how.
The court finds itself using history for both legal and practical reasons. History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.
These uses of history, ironically, provide support for powerful legal change. If the court is to overturn nearly 50 years of precedent, as it did in Dobbs v. Jackson Women’s Health Organization, it points to something even older and more deeply rooted than Roe v. Wade itself — the history and tradition surrounding the Constitution. So, too, if the court is to second-guess the gun-control legislation of modern jurisdictions, as it did in New York State Rifle & Pistol Association v. Bruen, it does so by pointing to the Constitution’s text and history.
The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.
Another critique is that judges cannot do history well, and that their judgments will inevitably be results-oriented. The justices went to law school, not graduate programs in history, and only a few of their law clerks have such training. Historians frequently condemn the court’s historical claims as oversimplified, overconfident and twisted to reach the desired outcome. This, too, misses the point. What the Supreme Court is ultimately deciding is law, not history for its own sake. It turns to the historical record to better understand the text that it is entrusted with interpreting, and uses legal procedures to do it — a traditional performance of the craft of judging.
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