Will Baude Writes About the Supreme Court’s Use of History

Of course the Supreme Court needs to use history. The question is how.

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.

Read more at The Washington Post

The judiciary