The Supreme Court’s Turn Toward History
This past term revealed just how much the Supreme Court is swinging rightward. Whether that turn is a good thing or not is up for debate. What is intriguing is how much the Court is relying on history to make that shift. In rulings on abortion, the Establishment Clause, and the 2nd Amendment, the Court rooted its decision in historical interpretations and values. Moreover, it rewrote the standards used to interpret the relevant Constitutional provisions to include historical references. In overturning Roe v Wade, the Court found that the Due Process Clause only protected fundamental rights that are “deeply rooted in this Nation’s history and traditions.” It found abortion was not one of them. Similarly, in Kennedy v. Bremerton, the Court ruled the Establishment Clause has to be interpreted in “light of historical practices and understandings.” The Court did not elaborate on how that new standard should be applied but found a coach’s prayer on the fifty-yard line did not violate those traditions.
In an opinion piece on Politico, Allison Orr Larsen explores the question of how the Court is using history. She concludes that the Court’s reliance on historical interpretations of the Constitution and fundamental rights may not be grounded in as much objective truth as the Court would like us to think. She notes that most of the historical record the Court is relying upon is contained in amicus briefs filed by interested parties. Those groups often have a particular agenda and cherry pick facts to support their position. Their assertions are often not fact-checked by the justices before they make their way into opinions. As a result, Orr Larsen concludes that this supposedly more objective historical record is instead “mounted to make a point and served through an advocacy sieve.” Justice Breyer has dubbed this practice “law office history.” In other words, it’s history being used to make a point rather than being seen as a tool to discover historical truth.
The answer that history provides often depends on whose history you believe. Each amicus group has its own interpretation and its own point of view to set forth. Unfortunately, justices often rely on the opinions of groups whose positions mirror their own. The influence of amicus briefs has dramatically risen in recent years. For example, Orr Larsen notes there were 23 amicus briefs filed in Roe v. Wade in 1973. By contrast, there were 140 filed this year in Dobbs v. Mississippi.
Historians are up in arms over how the Court presented the historical record in these recent cases. Many neutral scholars often do not participate in the Court advocacy process. By choosing one side over another, these historians argue that the Court ignored important details or simply got the history wrong. Orr Larsen suggests that the Court require legal argument and historical record to be separated form one another. She also suggests recruiting more neutral historians to inform the Court’s opinions and that they do so earlier in the process. While this sounds reasonable, it of course defeats the purpose the Court is trying to achieve–shifting Court policy in a different direction.
