Supreme Court turns to history: How does past speak to the present?

History has always played an important role in American law, and the Supreme Court – populated by individuals with lifetime appointments and little public accountability – is inherently less likely to be swayed by current thought than the rest of government. But deciding the legal direction of the country by looking backward can be an awkward enterprise, particularly when it concerns applying constitutional rights to modern times.

As the U.S. moves forward, its highest court seems preoccupied with looking backward, with a particular view of history underpinning key components of opinions expanding gun rights, erasing the right to abortion, and shifting how the boundary between church and state is guarded. And this kind of historical analysis – which critics call “law office history” – is primed to play a critical role in the U.S. legal landscape in the coming years.

As one historian puts it: “What do we mean by history and tradition? Whose history? Whose tradition?”

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