Recent SCOTUS decisions seem light in historical analysis
It’s been a banner year at SCOTUS, and the next term promises more thrills and thrills. Whether one is a fan of the ascendancy of originalist/textualists channeling (and overtaking by a mile) the late Antonin Scalia or one thinks the whole institution is going to hell in a hand basket, one has to find that the weaker branch suddenly brings about great changes in the way we organize our lives and administer our government. But do they know what they are doing?
I do not want to question the outcome of the major cases of the last mandate. Some of them seemed inevitable. Others I understand, if not agree with. But the idea that the court has now decided that the first, last, and only test for ambiguity (and ambiguity is the purpose de certiorari right?) should be what the words the writers of a particular text meant when they chose them require a deep and nuanced understanding of the story. I’m not sure the institution has ever been so good at historical analysis.
Cardozo’s Professor Kate Shaw has explained how poorly suited SCOTUS is for making history, and I think she’s right. She points out that the judges are all lawyers, some of whom were also judges before joining the court. Lawyers and judges spend most of their time reading cases and researching binding precedents. It is only when a case reaches the highest court that the judges go beyond the precedents. And if they are not well suited to do historical analysis by their training or experience, their clerks in their twenties, who have spent the last few years only reading cases themselves , really offer no help.
Shaw posits that this amateur historian charade opens the institution up to ridicule as misinformed or is simply a ruse to allow the court to choose from the past for reasons as to why the majority is doing what it wants to do.
Here is an example. The rate for this term included a Second Amendment case. For Second Amendment aficionados, it’s a license that allows all Americans to own, carry, display, and use firearms with a full, unfettered license. End of the conversation! Yet the author of the Second Amendment, James Madison, in 1779 also proposed “a bill for the preservation of the deer” in the Virginia Legislature which fixed a season for hunting deer on public lands which included this following :
Whoever contravenes this act, shall confiscate and pay, for each deer unlawfully killed by him, twenty shillings, one half for the use of the Commonwealth, and the other half to the informant; and moreover, will be bound to their good conduct; and, if, within twelve months from the date of the undertaking, he carries a firearm outside his enclosed grounds, unless he is on military duty, it shall be considered a breach of the undertaking and shall be cause for binding him to a new one, and any such carrying of a firearm shall be a breach of the new recognizance and cause to bind him again.
Although Madison’s bill was never signed into law and died in 1785, the terms quoted above certainly don’t sound like something any of the current Second Amendment champions would endorse. Apparently Madison thought there should be limits and anticipated that a repeat poacher could forever lose the right to carry a gun off their own premises. Anyone proposing such a measure today would be shot figuratively, if not literally.
Shaw’s point is that it’s all well and good to do historical analysis, but you better be prepared to do the hard work that comes with a good story. You must examine obscure documents in depth, read and research books, journals, correspondence, debates, primary and secondary, contemporary and historical sources before making a scholarly pronouncement on how history drives the reading or application of a constitution, an amendment, a law. or regulation. It is not for amateurs or beginners.
The way the law was made for the last generation or two was organic; judges and magistrates have looked as much to principles and values as to historical facts to discern what the law is. Remember, the plaintiff in Roe never had an abortion. And one of the authorities cited in Alito’s opinion approved of burning witches! The defendants charged with buggery in Lawrence v. Texas were in fact not engaging in homosexual activity when they were arrested. They were sitting around drinking beer. They were arrested because Houston police thought they were gay. The fact is that the facts of these cases were irrelevant, except to serve as an opportunity to address a matter of deep social concern.
I heard Ezra Klein interview Kate Shaw the other day. They both agreed that if SCOTUS goes into the history business, they better hire experienced historians than recent law school graduates to do their research. Amen to that.