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.

“I think what Justice Scalia wants to know is what James Madison thought about video games,” he quipped.

A decade later, Justice Alito – decidedly not joking about history or how to interpret the original meaning of the Constitution – wrote the opinion striking down the right to abortion. Unenumerated rights – which are not explicitly mentioned in America’s founding document, but instead implicitly protected by the 14th Amendment – are constitutional only if they are “deeply rooted in [our] history and tradition,” he wrote in Dobbs v. Jackson Women’s Health.

“Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the ‘liberty,’” he added.

History has always played an important role in American law, and the Supreme Court – populated by individuals with lifetime appointments and little public accountability – is inherently less likely to be swayed by current thought than the rest of government. 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 – which critics call “law office history” – is primed to play a critical role in the U.S. legal landscape in the coming years.

The results could be Justice Scalia’s dream of interpreting laws and rights based on the founders’ vision at the time of the country’s origin. Or the “dead hand” 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.

“The past is really a different place,” says Saul Cornell, a professor of American History at Fordham University, “and most of us would not be very happy or very comfortable if we had to live [there].”

“Historians naturally ask questions like, ‘Who said it? Why did they say it?” adds Dr. Cornell. “That’s not how lawyers think. If you had to think about that every time you ask a legal question you would never get anything done,” he continues. “But that’s also why this movement of the court is very bad – and at a time when the court cannot afford to lose any more public confidence.”

Roots in common law

U.S. law has roots in English common law, which holds, broadly, that law is derived from past judicial decisions. History has thus been a factor in judicial decisionmaking since America’s founding. But the rise of originalism has made historical analysis increasingly prominent.

Scalia pioneered this philosophy – that judges should interpret the Constitution in line with what it meant at the time of writing – 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’s most senior originalist, wrote a decision that both expanded gun rights and the role of history in refereeing gun control policies.

His majority opinion, 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 “regulation is consistent with this Nation’s historical tradition of firearm regulation.”

In so doing, he cut in half a “two-step” 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 “can be difficult,” wrote Justice Thomas. But “in our view [it’s] more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions.’”

The next day came Dobbs. The central act of Justice Alito’s opinion in Dobbs v. Jackson Women’s Health was to eliminate a woman’s right to abortion by overturning Roe v. Wade and Planned Parenthood v. Casey, two precedents holding that the 14th Amendment’s 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 – including the rights to contraception, same-sex intimacy, and same-sex marriage.

The following Monday, in Kennedy v. Bremerton School District, a case concerning prayer in public schools – the high court announced a new test courts should apply when evaluating claims that behavior violates the Constitution’s prohibition on the “establishment” of religion. “This Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings,’” wrote Justice Neil Gorsuch.

All three of those cases were decided 6-3, along the Supreme Court’s ideological divide. 

The “Glucksberg test” vs. evolving liberty

The notion that an unenumerated right must be “deeply rooted” in history comes from a 1997 case, Washington v. Glucksberg, where the court ruled unanimously that the due process clause doesn’t protect a right to assisted suicide.

Since then, the “Glucksberg test” appeared only in dissents. Scalia cited the ruling in 2003 in his dissent 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. 

Justice Anthony Kennedy, the author of Obergefell, countered that if rights were “defined 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.”

“Rights come not from ancient sources alone,” he added. “They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”

The decisive vote for many of his 30 years on the court, Justice Kennedy ensured that the court viewed the “liberty” protected by the due process clause as “evolving, and not historically static or frozen,” 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 “a court, shaped by President Trump, repudiating this historically evolving understanding of the liberty guarantee.”

In asserting that the right to abortion is not “deeply-rooted,” 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.) 

Critics both contest, and contextualize, his 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 “convenient,” wrote Professor Siegel in a Washington Post op-ed, because that was also a period when the law did not guarantee a woman’s right to property, earnings, or the vote. 

“History is an after-the-fact rationale for decisions reached on other grounds, in most cases – certainly in most big cases,” says Eric Segall, a professor at Georgia State University College of Law. “Our 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’s values, not the values of racists and sexists.”

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.  He did not believe in marital rape, considered women’s bodily autonomy a threat to men’s freedom, and sentenced women to hang as witches.

But these historic details may not be important to the legal argument, some scholars say.

“There are debates about some parts of the history, but [Justice Alito’s] basic argument is, as of the date Roe was decided, there was no right to abortion that had deep roots in our history,” says Lawrence Solum, a professor at the University of Virginia School of Law. “Of course he’s right about that, because at the time Roe was decided abortion was unlawful.”

That raises the question that Justice Kennedy debated with his colleagues.

“What do we mean by history and tradition? Whose history? Whose tradition?” asks Jack Rakove, a professor of history and political science at Stanford University.

“If you think about the systemic biases embedded [at those times], why would you stick to that,” he adds, “rather than ask where has the country come?”

What happens when history disagrees?

Additional problems can arise when the historical record presents conflicting arguments.

Justice Thomas’ historical analysis in Bruen ranges from the 1300s to 2008. Both parties made arguments, but New York’s arguments highlighting many historical examples of restrictions on gun possession in public “does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense,” he concluded.

The 1328 Statute of Northampton, for example – cited as an early example of restrictions on public carry – “has little bearing on the Second Amendment,” he wrote. And while public-carry restrictions “proliferate[d]” after the Amendment was adopted, none compare to New York’s law, he wrote, and those that did “are outliers.”

Moving forward, states and localities must identify “a well-established and representative historical analogue, not a historical twin” for their policies to be constitutional, he clarified. That kind of analogical reasoning is “a commonplace task for any lawyer or judge,” 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.

“The Court does not say how many cases or laws would suffice ‘to show a tradition of public-carry regulation,’” wrote Justice Stephen Breyer, who retired at the end of this term.

“At best,” he added, “the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd.”

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’s objectives against how it achieves those objectives, he wrote, but judges “are far less accustomed to resolving difficult historical questions.”

Justice Thomas acknowledges that judges themselves can’t 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 “entitled to decide a case based on the historical record compiled by the parties.”

The parties who file briefs in cases “don’t have an incentive to provide a history that undermines their preferred position,” says Jack Balkin, a professor at Yale Law School. “So essentially what you’re going to get is different accounts of history, and the judges are going to pick the ones they like best.”

This is a departure from the typical originalist approach, scholars say. In the District of Columbia v. Heller, for example – the Supreme Court’s 2008 ruling establishing an individual right to keep a handgun in the home – the historical analysis focused on what the Second Amendment meant at the time it was written.

In Bruen, “the Founding turns into a long Founding, if you will,” says Jonathan Gienapp, a history professor at Stanford University.

“Instead of the [Constitution’s] authors, we’re going to look at the people who put it in motion,” he adds. “It places an extraordinary emphasis on a new kind of constitutional and legal history.”

“The past speaks to the present”

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’s attorney general and a former justice, described the judiciary as “the check of a preceding generation on the current one and nearly always the check of a rejected regime on the one in being.”

While the past term was certainly a dramatic one, it doesn’t necessarily mean the court will continue to make history more important in more areas of law.

“Because these [big] cases all were decided in June 2022 you might think, ‘Hey, there’s this big new thing, the Supreme Court is moving to a tradition and history approach,’” says Professor Solum. “But the truth is that all of these cases have their roots in Supreme Court cases that go [way] back.”

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.

“The 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,” says Professor Solum.

Other legal scholars aren’t so sure, however, particularly when it comes to what the Dobbs ruling could mean for more recent substantive due process rights.

“This court is interested in extending history and tradition into other areas of law,” says Professor Siegel.

Justice Alito’s opinion emphasized that because the right to abortion destroys “fetal life,” it is “fundamentally different” 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 “calls their legitimacy into question.”

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.

“America is very much built around an understanding of its past. So fighting over that, claiming that for authority is always going to be important,” says Dr. Gienapp. But history and the law operate very differently, he adds.

Historians focus on “what has changed,” he says. Lawyers and judges, meanwhile, are “often trying to draw more or less straight lines between the past and present. … They’re often confident, you might say overconfident, in how the past speaks to the present.”