Supreme Court turns to history: How does past speak to the present?
Laughter is not a rare occurrence during oral arguments at the U.S. Supreme Court, but it is rare that Justice Samuel Alito is the jokester.
Yet late in 2010, the high court heard a case about a California law restricting the distribution of violent video games. If the government can censor violent content, asked Justice Antonin Scalia, then what next? Smoking? Drinking?
The deputy attorney general of California began to answer, then Justice Alito cut in.
Why We Wrote This
As the U.S. moves forward, its highest court is looking to the past. But putting a premium on history and tradition leaves open several questions. As one historian puts it: 鈥淲hat do we mean by history and tradition? Whose history? Whose tradition?鈥�
鈥淚 think what Justice Scalia wants to know is what James Madison thought about video games,鈥� he quipped.
A decade later, Justice Alito 鈥� decidedly not joking about history or how to interpret the original meaning of the Constitution 鈥� wrote the opinion striking down the right to abortion. Unenumerated rights 鈥� which are not explicitly mentioned in America鈥檚 founding document, but instead implicitly protected by the 14th Amendment 鈥� are constitutional only if they are 鈥渄eeply rooted in [our] history and tradition,鈥� he wrote in Dobbs v. Jackson Women鈥檚 Health.
鈥淗istorical inquiries of this nature are essential whenever we are asked to recognize a new component of the 鈥榣iberty,鈥欌�� he added.
History has always played an important role in American law, and the Supreme Court 鈥� populated by individuals with lifetime appointments and little public accountability 鈥� is inherently less likely to be swayed by current thought than the rest of government.聽But deciding the legal direction of the country by looking backward can be an awkward enterprise, particularly when it concerns applying constitutional rights to modern times.
Focus on the past has in different eras, such as the 1850s and 1930s, seen the court fall so out of step with contemporary values and beliefs that it brings its institutional strength to a breaking point. After a momentous term in which the justices made historical analysis central to the reshaping of key rights, some believe the Supreme Court may now be entering a similar era.
As the U.S. moves forward, its highest court seems preoccupied with looking backward, with a particular view of history underpinning key components of opinions expanding gun rights, erasing the right to abortion, and shifting how the boundary between church and state is guarded. And this kind of historical analysis 鈥� which critics call 鈥渓aw office history鈥� 鈥� is primed to play a critical role in the U.S. legal landscape in the coming years.
The results could be Justice Scalia鈥檚 dream of interpreting laws and rights based on the founders鈥� vision at the time of the country鈥檚 origin.聽Or the 鈥渄ead hand鈥� of the past, as President Franklin Roosevelt put it, might steer America toward values and beliefs now considered obsolete or condemned by a majority of society.
鈥淭he past is really a different place,鈥� says Saul Cornell, a professor of American History at Fordham University,聽鈥渁nd most of us would not be very happy or very comfortable if we had to live [there].鈥�
鈥淗istorians naturally ask questions like, 鈥榃ho said it? Why did they say it?鈥澛燼dds Dr.聽Cornell. 鈥淭hat鈥檚 not how lawyers think.聽If you had to think about that every time you ask a legal question you would never get anything done,鈥� he聽continues. 鈥淏ut that鈥檚 also why this movement of the court is very bad 鈥� and at a time when the court cannot afford to lose any more public confidence.鈥�
Roots in common law
U.S. law has roots in English , which holds, broadly, that law is derived from past judicial decisions. History has thus been a factor in judicial decisionmaking since America鈥檚 founding. But the rise of originalism has made historical analysis increasingly prominent.
Scalia pioneered this philosophy 鈥� that judges should interpret the Constitution in line with what it meant at the time of writing 鈥� starting in the 1980s. It has since flourished in the federal judiciary, and now commands a majority of the high court after three appointments in four years by former President Donald Trump.
On June 23, Justice Clarence Thomas, the court鈥檚 most senior originalist, wrote a decision that both expanded gun rights and the role of history in refereeing gun control policies.
His majority , in New York State Rifle & Pistol Association v. Bruen, holds that the Second Amendment confers a right for law-abiding citizens to carry guns in public. Further, he said that when courts evaluate gun policies, they must consider only if the policy 鈥渞egulation is consistent with this Nation鈥檚 historical tradition of firearm regulation.鈥�
In so doing, he cut in half a 鈥渢wo-step鈥� process used throughout the federal courts that combined historical analysis with scrutiny of government claims that its public safety concerns justify the burden on the rights of gun owners. Historical analysis 鈥渃an be difficult,鈥� wrote Justice Thomas. But 鈥渋n our view [it鈥檚] more legitimate, and more administrable, than asking judges to 鈥榤ake difficult empirical judgments鈥� about 鈥榯he costs and benefits of firearms restrictions.鈥欌��
The next day came Dobbs. The central act of Justice Alito鈥檚聽 in Dobbs v. Jackson Women鈥檚 Health was to eliminate a woman鈥檚 right to abortion by overturning Roe v. Wade and Planned Parenthood v. Casey, two precedents holding that the 14th Amendment鈥檚 right to due process guaranteed a right to abortion. The due process provision has been read to protect other rights not written in the Constitution 鈥� including the rights to contraception, same-sex intimacy, and same-sex marriage.
The following Monday, in , a case concerning prayer in public schools 鈥� the high court announced a new test courts should apply when evaluating claims that behavior violates the Constitution鈥檚 prohibition on the 鈥渆stablishment鈥� of religion. 鈥淭his Court has instructed that the Establishment Clause must be interpreted by 鈥榬eference to historical practices and understandings,鈥欌�� wrote Justice Neil Gorsuch.
All three of those cases were decided 6-3, along the Supreme Court鈥檚 ideological divide.聽
The 鈥淕lucksberg test鈥� vs. evolving liberty
The notion that an unenumerated right must be 鈥渄eeply rooted鈥� in history comes from a 1997 case, Washington v. Glucksberg, where the court ruled unanimously that the due process clause doesn鈥檛 protect a right to assisted suicide.
Since then, the 鈥淕lucksberg test鈥� appeared only in dissents. Scalia cited the ruling in 2003 in his to Lawrence v. Texas, which established a right to consensual same-sex intimacy. And in 2015, when the court extended the right of marriage to same-sex couples in Obergefell v. Hodges, both Chief Justice John Roberts and Justice Alito cited the ruling in their dissents.聽
Justice Anthony Kennedy, the author of Obergefell, countered that if rights were 鈥渄efined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.鈥�
鈥淩ights come not from ancient sources alone,鈥� he added. 鈥淭hey rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.鈥�
The decisive vote for many of his 30 years on the court, Justice Kennedy ensured that the court viewed the 鈥渓iberty鈥� protected by the due process clause as 鈥渆volving, and not historically static or frozen,鈥� says Reva Siegel, a professor at Yale Law School.
Justice Kennedy retired in 2018, and the more conservative Justice Brett Kavanaugh replaced him. What you see in Dobbs, adds Professor Siegel, is 鈥渁 court, shaped by President Trump, repudiating this historically evolving understanding of the liberty guarantee.鈥�
In asserting that the right to abortion is not 鈥渄eeply-rooted,鈥� Justice Alito devotes dozens of pages to the history of abortion jurisprudence, starting in 13th century England. The bulk of the historical analysis focuses on the mid-19th century, when states started to criminalize abortion. (Twenty-eight states did so when the 14th Amendment was ratified, and 30 states did so, except to save the life of the mother, when Roe was decided.)聽
Critics both contest, and contextualize, his聽framing of history. The opinion discounts 18th and early 19th-century American laws permitting abortion before quickening (roughly 18 weeks of pregnancy), and ignores demands of 19th century abolitionists and suffragists for bodily autonomy. The focus on the 19th century is 鈥渃onvenient,鈥� wrote Professor Siegel in a Washington Post , because that was also a period when the law did not guarantee a woman鈥檚 right to property, earnings, or the vote.聽
鈥淗istory is an after-the-fact rationale for decisions reached on other grounds, in most cases 鈥� certainly in most big cases,鈥� says Eric Segall, a professor at Georgia State University College of Law.聽鈥淥ur Constitution is full of lots of vague, important aspirations. We should flesh out these vague aspirations of equality, fairness, due process, free speech, by today鈥檚 values, not the values of racists and sexists.鈥�
Looking further back, Justice Alito turns to the 17th century jurist Lord Matthew Hale, who he cites seven times in Dobbs. Hale may well be a prolific figure in early common law history, but multiple scholars have noted the depths of his misogyny. 聽He did not believe in marital rape, considered women鈥檚 bodily autonomy a聽, and聽sentenced women to hang as witches.
But these historic details may not be important to the legal argument, some scholars say.
鈥淭here are debates about some parts of the history, but [Justice Alito鈥檚] basic argument is, as of the date Roe was decided, there was no right to abortion that had deep roots in our history,鈥� says Lawrence Solum, a professor at the University of Virginia School of Law. 鈥淥f course he鈥檚 right about that, because at the time Roe was decided abortion was unlawful.鈥�
That raises the question that Justice Kennedy debated with his colleagues.
鈥淲hat do we mean by history and tradition? Whose history? Whose tradition?鈥� asks Jack Rakove, a professor of history and political science at Stanford University.
鈥淚f you think about the systemic biases embedded [at those times], why would you stick to that,鈥� he adds, 鈥渞ather than ask where has the country come?鈥�
What happens when history disagrees?
Additional problems can arise when the historical record presents conflicting arguments.
Justice Thomas鈥� historical analysis in Bruen ranges from the 1300s to 2008. Both parties made arguments, but New York鈥檚 arguments highlighting many historical examples of restrictions on gun possession in public 鈥渄oes not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense,鈥� he concluded.
The 1328 Statute of Northampton, for example 鈥� cited as an early example of restrictions on public carry 鈥� 鈥渉as little bearing on the Second Amendment,鈥� he wrote. And while public-carry restrictions 鈥減roliferate[d]鈥� after the Amendment was adopted, none compare to New York鈥檚 law, he wrote, and those that did 鈥渁re outliers.鈥�
Moving forward, states and localities must identify 鈥渁 well-established and representative historical analogue, not a historical twin鈥� for their policies to be constitutional, he clarified. That kind of analogical reasoning is 鈥渁 commonplace task for any lawyer or judge,鈥� he added.
But there was little other guidance for governments and lower courts on what critical mass of historical policies are enough to pass constitutional muster, according to the dissenting justices.
鈥淭he Court does not say how many cases or laws would suffice 鈥榯o show a tradition of public-carry regulation,鈥欌�� wrote Justice Stephen Breyer, who retired at the end of this term.
鈥淎t best,鈥� he added, 鈥渢he numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history鈥檚 crowd.鈥�
Logistical challenges will be difficult for lower courts, he noted, because they have higher caseloads and fewer research resources. Also, judges are well-trained in how to weigh a law鈥檚 objectives against how it achieves those objectives, he wrote, but judges 鈥渁re far less accustomed to resolving difficult historical questions.鈥�
Justice Thomas acknowledges that judges themselves can鈥檛 be expected to perform extensive historical research. Instead, he wrote in a footnote, parties in the cases should. Because the legal system is adversarial by nature, courts are 鈥渆ntitled to decide a case based on the historical record compiled by the parties.鈥�
The parties who file briefs in cases 鈥渄on鈥檛 have an incentive to provide a history that undermines their preferred position,鈥� says Jack Balkin, a professor at Yale Law School. 鈥淪o essentially what you鈥檙e going to get is different accounts of history, and the judges are going to pick the ones they like best.鈥�
This is a departure from the typical originalist approach, scholars say. In the District of Columbia v. Heller, for example 鈥� the Supreme Court鈥檚 2008 ruling establishing an individual right to keep a handgun in the home 鈥� the historical analysis focused on what the Second Amendment meant at the time it was written.
In Bruen, 鈥渢he Founding turns into a long Founding, if you will,鈥澛爏ays Jonathan Gienapp, a history professor at Stanford University.
鈥淚nstead of the [Constitution鈥檚] authors, we鈥檙e going to look at the people who put it in motion,鈥� he adds. 鈥淚t places an extraordinary emphasis on a new kind of constitutional and legal history.鈥�
鈥淭he past speaks to the present鈥�
The Supreme Court imposing old values on a country that broadly chafes against that vision has happened in the past.
In the 1850s, as the North grew in economic and political strength with the Republican Party, a court comprised mostly of southern Democrat appointees routinely ruled in favor of preserving slavery, culminating in the Dred Scott decision in 1857. Later, in the 1930s, a conservative court that had been regularly striking down progressive reforms like establishing a minimum wage, banning child labor, and breaking up monopolies clashed with Roosevelt over his New Deal policies.
Robert Jackson, Roosevelt鈥檚 attorney general and a former justice, described the judiciary as 鈥渢he check of a preceding generation on the current one and nearly always the check of a rejected regime on the one in being.鈥�
While the past term was certainly a dramatic one, it doesn鈥檛 necessarily mean the court will continue to make history more important in more areas of law.
鈥淏ecause these [big] cases all were decided in June 2022 you might think, 鈥楬ey, there鈥檚 this big new thing, the Supreme Court is moving to a tradition and history approach,鈥欌�� says Professor Solum. 鈥淏ut the truth is that all of these cases have their roots in Supreme Court cases that go [way] back.鈥�
Furthermore, if the court wanted to extend this method of historical analysis to other provisions of the Constitution, the court would have to choose to do so.
鈥淭he reasoning of the court in Dobbs is limited to substantive due process, and the reasoning of the court in Bruen is limited to the Second Amendment,鈥� says Professor Solum.
Other legal scholars aren鈥檛 so sure, however, particularly when it comes to what the Dobbs ruling could mean for more recent substantive due process rights.
鈥淭his court is interested in extending history and tradition into other areas of law,鈥� says Professor Siegel.
Justice Alito鈥檚 opinion emphasized that because the right to abortion destroys 鈥渇etal life,鈥� it is 鈥渇undamentally different鈥� from other substantive due process rights. The ruling could have stopped there, notes Professor Siegel, but the fact it invoked history and tradition as well means that it 鈥渃alls their legitimacy into question.鈥�
The extent to which history and tradition will be a focus for the Supreme Court moving forward remains to be seen, but what the past term shows is how different the practice of law and the practice of history can be.
鈥淎merica is very much built around an understanding of its past. So fighting over that, claiming that for authority is always going to be important,鈥� says Dr. Gienapp. But history and the law operate very differently, he adds.
Historians focus on 鈥渨hat has changed,鈥� he says. Lawyers and judges,聽meanwhile, are 鈥渙ften trying to draw more or less straight lines between the past and present. 鈥� They鈥檙e often confident, you might say overconfident, in how the past speaks to the present.鈥�
