The Supreme Court’s Reliance On “historical Analysis” To End Abortion Rights And Curb Gun Control This Term Could Overturn Other Landmark Precedents, Perhaps Even Brown V. Board

Heading into oral arguments in Brown v. Board, Thurgood Marshall, the civil rights icon arguing for the integration of southern schools, feared the legislative history surrounding the case. Though he was confident that the Fourteenth Amendment, passed soon after the Civil War, granted freed slaves equal rights, Marshall remained concerned by the argument put forth by his adversary, John Davis. Since 24 of the 37 states then in the union required or allowed segregated schools during the Amendment’s adoption, Davis argued, the constitutional provision could not have possibly required integration. “It looked as if… Davis would win the historical argument hands down,” remembered one of the historians assisting Marshall’s legal team.

Chief Justice Earl Warren’s unanimous opinion allayed Marshall’s fears. While the Court’s evaluation of the “circumstances surrounding the adoption of the Fourteenth Amendment in 1868… cast some light,” Warren wrote, the Court would not become beholden to the historical record from an inapposite time. It instead applied the Amendment’s promise of equality to conditions as they stood in 1954.

Brown remains a lodestar for the Court, even for the conservative justices whose reliance on America’s “historical tradition” stands in stark contrast to Warren’s reasoning. Strict application of the rigid historical analysis favored by the six Republican-appointed justices on the Court today could theoretically overturn cases involving the right to contraception and gay marriage, and if taken to its logical conclusion, threaten to overrule even Brown.

In two of the Court’s landmark cases this term—Dobbs, which overturned the right to an abortion, and Bruen, which clamped down on gun restrictions—the Court’s conservative justices largely based their decisions on “historical analysis” dating back not just to the formation of the Constitution but to colonial and English legal systems reaching into the Middle Ages.

Basing their decisions on the views of archaic lawmakers who had branded women as witches during the colonial era, had barred abortion in the mid-1800s well before women had obtained suffrage, and had never contended with weapons that could kill dozens of people in seconds didn’t trouble the Court’s conservatives.

Their conviction as to the righteousness of their approach was on full display in Dobbs, which overturned Roe v. Wade, the 1973 case establishing the constitutional right to an abortion. Justice Samuel Alito concluded that because three-quarters of states had outlawed abortion when the Fourteenth Amendment was enacted—nearly identical to the number countenancing segregated schools—the “inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

So fixated on the values of state legislators from the 1860s, Alito undertook the unusual step of including a 22-page Appendix summarizing the laws “criminalizing abortion” during the Fourteenth Amendment’s ratification.

Justice Clarence Thomas’s Bruen opinion appeared equally anachronistic when it compared “daggers” from Medieval England to “modern handguns” in his lengthy “historical analysis” of gun control. In page after page, Thomas examined legislation arising from England’s civil wars, eighteenth century treatises and rulings from English courts, and laws passed by colonial governments. His assessment read more like an academic study fit for a legal journal than a rational attempt to apply the principles engendered in the Second Amendment to contemporaneous situations.

No matter how obscure or antiquated their methodology appears, the Court’s conservatives have wholeheartedly embraced this doctrine. Justice Amy Coney Barrett even filed a concurring opinion in Bruen just to dispel any notion that the Court should “endorse freewheeling reliance on historical practice from the mid-to-late 19^th century to establish the original meaning of the Bill of Rights.” To her, few sources unearthed beyond the Founding generation should “bear on the original meaning of the Constitution.”

A major drawback of this approach is that the justices tend to pick and choose the laws and customs supporting their preferences or simply draw the wrong conclusion from their historical examination as Justice Stephen Breyer effectively explained in his dissent in Bruen.

But there is something far more important at stake than trying to accurately decipher the tenets of the past. While tradition and history are relevant, if the nation relies too heavily on the philosophy, morality, and viewpoints of the Founding Fathers or their predecessors, it will remain stuck in time. Doing so will, in most cases, lead to conservative outcomes that cling to traditions and inhibit the nation’s legal system from adapting to society’s ever-changing outlook.

Mindful of this dynamic, Warren took the historical context surrounding the Fourteenth Amendment into account but ultimately championed the application of broad constitutional concepts to modern-day conditions in Brown. “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written,” he proclaimed, referring to the long-standing precedent legalizing segregation. “We must consider public education in… its present place in American life.”

Today’s conservative majority, on the other hand, seems eager to turn the clock back to 1868, 1787, and beyond.