My new essay at The Hill explains the Supreme Court’s misuse of historical methods.
Here is the gist:
The Supreme Court’s selective history
by Steven Lubet, Opinion Contributor - 07/27/22 8:00 AM ET
The Supreme Court’s six-member conservative majority has increasingly adhered to a jurisprudence that seeks to enforce the Constitution’s “original meaning,” which was “fixed” at the time of ratification. In case after case, the majority has discovered arrays of mostly obscure historical sources revealing that the original meaning of the Constitution just happens to coincide with the objectives of the Republican Party. It is poor judging and worse history.
The justices bolster their decisions with a litany of old sources, sometimes ranging over centuries, as though they had actually engaged in objective research to determine the exact legal, social and political conditions surrounding adoption of the relevant constitutional amendments. In fact, they lack the time, resources and education to do anything of the sort.
What should be obvious is that Alito, with his clerks’ assistance, plucked his sources from partisan briefs, selectively plugging them into his opinion, where they provided ostensible support. Granting that he checked the citations for accuracy, there is virtually no chance that he engaged in primary archival research of the sort that would take a history dissertation writer years to complete. Gorsuch (political science, Princeton) and Thomas (English literature, Holy Cross) were operating under the same time and resource constraints. Thomas admitted in a footnote that he bases his opinions “on the historical record compiled by the parties,” a practice that allows him to pick and choose the sources that best fit his narrative.
The result is display of faux erudition. The originalist justices affect mastery of a vast literature, when in truth they barely scratch the surface, with no acknowledgement of what they missed, misunderstood, exaggerated or omitted.
Perhaps that is why the late Justice Antonin Scalia had reservations about law office history. “I’m an originalist,” he explained on National Public Radio, “not a nut.” Those were the days.
You can read the entire essay here.
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