The Supreme Court’s selective history

The Supreme Court’s six-member conservative majority has increasingly adhered to a jurisprudence that seeks to enforce the Constitution’s “original meaning,” which was “fixed” at the time of ratification. In case after case, the majority has discovered arrays of mostly obscure historical sources revealing that the original meaning of the Constitution just happens to coincide with the objectives of the Republican Party. It is poor judging and worse history.

In Dobbs v. Jackson Women’s Health Organization, for example, Justice Samuel Alito looked to what he called our nation’s “history and tradition” to declare that the Constitution “does not confer a right to abortion.” Neither the Fourth Amendment’s “right of the people to be secure in their persons,” nor the Fourteenth Amendment’s guarantees of liberty and equal protection or even the Eighth Amendment’s recognition of unenumerated rights “retained by the people” met Alito’s historical test, which included a survey of “English cases dating all the way back to the 13th century.”

Alito’s tour of historical sources invoked such “eminent common-law authorities” as Sir Matthew Hale, a British jurist in the late 1600s, who once sentenced two “witches” to death and is best known today for advising juries to disbelieve rape victims.

Justice Clarence Thomas likewise relied on “the Nation’s historical tradition of firearm regulation” to strike down a century-old New York handgun licensing statute in New York State Rifle & Pistol Association v. Bruen, although it involved a fair bit of intellectual contortion.

First, Thomas had to dismiss the relevance of “boatloads” of gun control laws and ordinances, dating back to the founding era, as insufficiently similar to the challenged New York law. Then he explained that the absence of a “well-established and representative historical analogue” rendered the New York law unconstitutional.

Today’s world would be unrecognizable to the drafters of the Second Amendment – with unforeseeable population density, powerful semi-automatic weapons and frequent mass shootings — but that counts for nothing in Thomas’s historical method. His only concern is whether a contemporary gun control law maps directly, by his own lights, onto practices in the 19th century.

Not to be outdone, Justice Neil Gorsuch “focused on original meaning and
history” to determine, in Kennedy v. Bremerton School District, that a local school board could not require a football coach to refrain from demonstrative prayers, joined by team members, at midfield following every game. The board was rightly concerned that some students might feel excluded from their classmates or, worse, pressured to join the prayers. Gorsuch figured they could just get over it, citing “a long constitutional tradition under which learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society.’”

In each of these cases, and others, the court’s conservative majority claimed to find support for its decisions in ages past, with scores of references to long-dead writers, philosophers and political figures. As the ACLU’s David Cole put it, they are committed to a method that “mirror[s] eighteenth- and nineteenth-century laws,” leaving our rights at best “frozen by conditions in early America.”

The justices bolster their decisions with a litany of old sources, sometimes ranging over centuries, as though they had actually engaged in objective research to determine the exact legal, social and political conditions surrounding adoption of the relevant constitutional amendments. In fact, they lack the time, resources and education to do anything of the sort.

A case is typically pending in the Supreme Court for a year or so, from the time the court accepts it for review until the decision is announced. The Dobbs case, for example, was accepted on May 17, 2021, with briefing completed on Oct. 13. That gave Alito – a public and international affairs major at Princeton – about seven months to research, draft and circulate his opinion before it was issued on June 24, 2022.

That is far too short a time for even the most single-minded, full-time professional historian to accurately survey abortion law and practices spanning the Atlantic over many centuries, as Alito purports to have done (while also writing another 19 majority, concurring and dissenting opinions, and participating in an additional 49 cases then before the Supreme Court).

What should be obvious is that Alito, with his clerks’ assistance, plucked his sources from partisan briefs, selectively plugging them into his opinion, where they provided ostensible support. Granting that he checked the citations for accuracy, there is virtually no chance that he engaged in primary archival research of the sort that would take a history dissertation writer years to complete. Gorsuch (political science, Princeton) and Thomas (English literature, Holy Cross) were operating under the same time and resource constraints. Thomas admitted in a footnote that he bases his opinions “on the historical record compiled by the parties,” a practice that allows him to pick and choose the sources that best fit his narrative.

The result is display of faux erudition. The originalist justices affect mastery of a vast literature, when in truth they barely scratch the surface, with no acknowledgement of what they missed, misunderstood, exaggerated or omitted.

Even in the best of circumstances, historical evidence is hard to pin down. As the British historian E.H. Carr put it, facts are like “fish swimming about in a vast and sometimes inaccessible ocean; and what the historian catches will [be] determined by the kind of fish he wants to catch. By and large, the historian will get the kind of facts he wants.”

Perhaps that is why the late Justice Antonin Scalia had reservations about law office history. “I’m an originalist,” he explained on National Public Radio, “not a nut.” Those were the days.

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial” and three other books on 19th century legal history.