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08/12/2022

William Baude on the Supreme Court's Use of History
Michel Ramsey

In the Washington Post, William Baude: Of course the Supreme Court needs to use history. The question is how.  From the introduction:

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.

And in conclusion: 

This brings us to the broader lesson. In recent years, many critics of the court — including some dissenting justices — have ceded the initiative. They have tried to shield themselves behind precedents or to poke holes in the majority’s arguments without advancing a competing constitutional theory.

That is true even of recent dissents that engaged superficially on historical grounds. That will not be enough. The court’s increasing reliance on history creates an opportunity for those critics to provide their own rigorous account of our law and constitutional tradition. To seize that opportunity, they will have to make the best use of history, not try to escape it.