The Supreme Court Keeps Citing ‘History and Tradition.' Whose History?

"History" and "tradition" are mentioned over and over in this week's Supreme Court decisions on abortion rights and gun control.

In the majority opinion, concurrences and dissent in Dobbs v. Jackson Women's Health, Supreme Court justices used the word "tradition" 47 times, and "history" 67 times. In the decision documents for a Thursday ruling on a New York gun case, justices mentioned "tradition" 51 times and "history" 95 times.

"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision," Justice Samuel Alito wrote early in the majority opinion. He said rights need to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

In the dissents, the outnumbered left-leaning justices criticized the right-leaning majority's usage of history in their arguments. It raises "troubling questions," outgoing Justice Stephen Breyer wrote in his dissent in New York State Rifle & Pistol Assn. v. Bruen. He expressed concern that lower courts might have to conduct "exhaustive historical analyses in every Second Amendment case" and wondered: "How will judges determine which historians have the better view of close historical questions?"

"And, most importantly," Breyer continued, "will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?"

On a call with reporters Thursday, Jonathan Lowy, chief counsel for Brady: United Against Gun Violence, a gun control advocacy organization, said, "the justices rely on a fantasy version of history to cherry-pick historical facts to obtain their policy agenda."

Historians are wondering too: How does the court decide which laws and rights are "deeply rooted" in history and traditions and can be upheld?

The justices and clerks "are not professional historians...at best we could call them really interested amateurs, but they're just not trained in it," says Gautham Rao, an American University history professor with his name on multiple Supreme Court amicus briefs.

"The question then becomes for historians, 'why is the Supreme Court relying on this version of history in order to decide extremely pressing and important things about the present?'" Rao told LX News.

Historical inaccuracies in the majority opinion overturning Roe v. Wade

Several articles point out the specific historical inaccuracies in the Supreme Court majority opinions released this week. In Slate, Fordham University history professor Saul Cornell says Justice Clarence Thomas mischaracterized the severity of gun laws during the Reconstruction period.

Leslie Regan, author of "When Abortion Was a Crime," wrote in Politico that Alito's abortion argument ignored 1800s legal precedents on abortion, which largely focused on the "quickening," a term for when a pregnant person first feels the sensation of a baby turning or kicking in the womb. That tends to happen between four and six months into a pregnancy, she wrote.

"In early America as in early modern England, abortion before 'quickening' was legal under common law and widely accepted in practice," Regan wrote.

And the Law and History Review, which Rao edits, published a special issue unpacking — and debunking — the court's historical claims made about abortion.

In one of the pieces, three medieval historians say abortion was treated more like a sin in the 13th century, absolved through penance, which they say were minor pre-quickening. They say Alito's characterization of it as a crime in the 13th century is incorrect.

Should justices even be looking at history at all?

Besides the objections that history is not being retold holistically or accurately in the court decisions, Rao made a larger point: Focusing on old laws puts the present back to a time when the legal and medical fields were dominated (if not solely populated) by white men, women couldn't vote, and people of color had few rights.

"You have to wonder, how many of those voices are represented in Justice Alito's majority opinion? I don't think any. They are really reflective of an elite jurisprudence, of which women were just not a part of," Rao said.

In another Law and History Review article, Dr. Deborah Dinner said Alito's draft opinion "fixes constitutional interpretation at a time when women lacked the franchise, full control over their earnings and marital property, the capacity to sue their husbands for marital rape, and equal rights to labor market participation and economic citizenship."

Rao said similarly, "Do we really want to consider generations, centuries of lawmaking in which it's just men legislating about women?"