Many law professors and other authorities have claimed in popular commentary that the Supreme Court majorities in the June opinions used flawed, even dishonest, history. I haven’t seen much yet that proves the claim.
For example, there’s this piece by Steven Lubet (Northwestern) at The Hill: The Supreme Court’s selective history. He concludes:
What should be obvious is that Alito [in the Dobbs case], 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 a 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.
But I don’t see anything in his post (apart from assertion) showing that the Justices got the history materially wrong in Dobbs. Here’s everything the post says about the Dobbs opinion’s history:
In Dobbs v. Jackson Women’s Health Organization, for example, Justice Samuel Alito looked to what he called our nation’s “history and tradition” to declare that the Constitution “does not confer a right to abortion.” Neither the Fourth Amendment’s “right of the people to be secure in their persons,” nor the Fourteenth Amendment’s guarantees of liberty and equal protection, or even the Eighth [ed.: Ninth!] Amendment’s recognition of unenumerated rights “retained by the people” met Alito’s historical test, which included a survey of “English cases dating all the way back to the 13th century.”
Alito’s tour of historical sources invoked such “eminent common-law authorities” as Sir Matthew Hale, a British jurist in the late 1600s, who once sentenced two “witches” to death and is best known today for advising juries to disbelieve rape victims.
This doesn’t cast any real doubt on the history. To begin, one might suppose from the post that the only sources the Dobbs majority invoked were 13th century authorities and Hale (which I agree standing alone would have been extraordinarily limited and unpersuasive). Instead, the opinion extensively discusses evidence from eighteenth and nineteenth century America, which Professor Lubet doesn’t mention.
Second, while I agree that the 13th century doesn’t show much, the majority’s reliance (in small part) on Hale is important to show the absence of an abortion right in the American framers’ English heritage. True, Hale may have had some shockingly unenlightened views on witches and rape, but he’s widely cited, not as a moral authority, but as a descriptive authority of the English law of his time. More importantly, if Professor Lubet thinks Hale was wrong about seventeenth-century English law, he needs some evidence to show that. If he doesn’t think Hale was wrong, there’s no point to the snark about witches.
That brings out the third and most crucial point. The claim throughout the post is that the Justices are getting the history wrong (and, indeed, are unable to get it right, and perhaps dishonestly don’t care). But for that to be shown, one needs evidence. The Dobbs opinion makes factual claims about the historical treatment of abortion — in the 1600s, but more importantly in the 1700s and 1800s. Is this history incorrect? Is there evidence that abortion was understood as a right in those key times? Perhaps so, but Professor Lubet doesn’t provide any. And without evidence that the majority got the history wrong, the claim of selective use of history collapses.
I think Professor Lubet’s real problem with the Dobbs opinion is not its history but its interpretive methodology. The starting point for the majority is that abortion shouldn’t be recognized as a constitutional right today unless it was recognized as a fundamental traditional right around the time of enactment. One can criticize that starting point as a mistaken view of constitutional interpretation (even as a mistaken view of originalism). But that’s very different from saying the majority, given its starting point, got the history wrong. To show the latter, one needs to actually show ways in which the history is wrong.
(I don’t mean to pick unduly on Professor Lubet, who is a very distinguished and capable scholar, and whose post is no worse than many criticizing last month’s opinions. But there’s been a chorus of claims about the Court’s alleged selective history, of which his is typical. As with his, I think these claims are largely unproven, and actually arise principally from objections to interpretive methodology and modern outcomes rather than historical conclusions.)
(And if anyone can point me to evidence that the Dobbs majority actually got the history wrong in material ways, I’m happy to post it. I don’t have a stake in this, apart from questioning unsubstantiated claims about the Justices’ history being wrong or dishonest.)
RELATED: At Volokh Conspiracy, Josh Blackman comments on an essay by Allison Orr Larson criticizing the Court’s history: “Professional Historians” Who File Amicus Briefs Are Motivated As Well.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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