(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . The Supreme Court’s Abuse of History [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.', 'Backgroundurl Avatar_Large', 'Nickname', 'Joined', 'Created_At', 'Story Count', 'N_Stories', 'Comment Count', 'N_Comments', 'Popular Tags'] Date: 2022-08-03 Has this Hall of Justice become a threat to our Democratic Republic? As I predicted in an October 2020 diary, the Supreme Court has lost much of its legitimacy because of several controversial majority opinions, which, along with other problems, exhibit highly flawed employment of historical justifications. A recent Gallop poll indicates that a new record low of just 25% of Americans have confidence in the Court. I am not a lawyer, but I can assure you that the conservative Justices (along with their clerks, who do the lion’s share of the research) would struggle to pass any history course that I might teach. The fundamental problem with their use of history is their selective approach. Whether their arguments are based on the actual text of the Constitution, the Framers’* Intent, or the larger historical context of the issue being tried, they are picking and choosing the evidence that supports their position while ignoring other evidence that is contrary to their decision. In a recent article in The Washington Post’s “Made by History” column, I argue that the conservative justices, despite all their lip-service to the “Founders’ Intent” overlook the fundamental mindset of the Framers as men of the Enlightenment. Their Enlightenment perspective meant that they expected their framework for government to be improved over time as humanity approached perfection. They said as much in the text of the Constitution when they laid out their purpose “to form a more perfect union.” It was more perfect, but they knew it was not completely perfect. As I wrote in the Post: “The Founders expected the document to grow and change over time, guided by new and better understandings of the world. Originalism makes achieving this vision far more difficult — if not impossible — in a polarized America.” Here I take the opportunity to delve more deeply into historical issues in ways that did not fit into my Washington Post essay. While historians enjoy a good scholarly argument, our profession is remarkably unified in condemning the Supreme Court’s abuse of history. The two major associations for professional historians, the Organization of American Historians (OAH) and the American Historical Association (AHA) have issued a joint statement on the Dobbs versus Jackson decision overturning the precedent of Roe versus Wade. This statement emphasizes the imperative need “that historical evidence and argument be presented according to high standards of historical scholarship.” Despite mentioning “history” sixty-seven times, the majority opinion ignores the well-established fact that until the late nineteenth century abortion (at least in the first three to four months of pregnancy) was legal throughout the United States. To establish the historical “precedent” of criminalizing abortion, the opinion cites a single seventeenth-century clergyman rather than the overall historical record which shows that abortion was a common practice that was viewed as a private matter for women and their health-care providers, until the mid-nineteenth century when male-dominated medical associations began lobbying for regulations that would shift control and access to these procedures into the hands of male doctors. Several other recent Supreme Court decisions are equally blatant in their abuses of history. In Oklahoma versus Castro-Huerta, the court ruled that the state laws of Oklahoma should prevail within a Native American reservation that happens to be located within the borders of the state. This decision may well be the most egregious disregard of historical precedent in the history of the Court. It disdains more than 200 years of consistent practice regarding government interactions with Native Americans. The paramount relationship has always been between Native nations and the central government. This formulation dates back to the American Revolution. The Native tribes have always been viewed as independent, sovereign nations that have a direct relationship with the federal government through the various treaties that have been signed and ratified. In his latest book, Max Edling, a historian who has written several books about the early government of the United States makes a compelling argument that the Constitution was established largely for the need to create a central authority to deal with other nations, especially Indian nations. For all the rhetoric about following “Founders’ Intent” and historical precedent, this decision absolutely flies in the face of all practice through the nation’s history. The only possible explanation that I can see for this is the justices want to ensure the states can dictate policy on Native lands in the event that they start offering open access to abortion services on the reservations. In West Virginia versus EPA, the conservative majority ignored all previous precedent to introduce a new judicial innovation, the “Major Questions Doctrine.” This decision overturned the Environmental Protection Agency’s authority to regulate Carbon Dioxide emissions from power plants by arguing that Congress did not have the right to delegate this authority to a government agency through its legislation. In other words, the Clean Air Act, which Congress passed to regulate air pollution would have to be revisited by Congress in order to authorize the EPA to regulate air pollution that happened to have the effect of causing global heating. In this case, the Court is arrogating to itself the right to decide what constitutes a “major question” that requires specific legislation, rather than leaving it up to the Congress and Executive Branch, as has happened throughout our history. The New York State Rifle & Pistol Association versus Bruen decision struck down a strict state Bearing arms in a recreation of War of 1812 musket fire regulation that had been in place since 1911. In this case, despite all of the conservative rhetoric about state’s rights, the Court determined that their interpretation of the Second Amendment trumps a state’s right to regulate the public carrying of handguns (the New York law did not regulate gun ownership ). In my very first Daily Kos diary, three years ago, I argued that this NRA interpretation of the Second Amendment profoundly misunderstands the Founders’ Intent with regards to the right to bear arms. Since then, scholar Noah Shusterman has written in depth about the long militia tradition that informed the leaders who framed the Second Amendment. As he argues in his book, the importance of “the well-regulated militia”—in other words, a government sanctioned militia—was the key reason why they included this amendment in the Bill of Rights. All of these decisions include distressing abuses and mis-readings of history, but none of them threaten the very foundations of the American republic in the way that another upcoming case has the potential to do. This fall, the Supreme Court has agreed to hear a case involving allegations that the Republican-controlled legislature of North Carolina has gerrymandered the congressional districts of the state, in violation of the state’s constitution. The lawyers for the state legislature are likely to present an argument based on the innovative doctrine of “Legislative Supremacy.” This outlandish idea first reared its head in the Bush versus Gore litigation of 2000. It is based on a literal reading of the text of the Constitution that provides that the individual state legislatures shall determine how elections are carried out within their states. A ruling along this line would negate the long-standing precedents of state constitutions, federal legislation, and the actions of governors all interacting with legislative authority to determine electoral processes. It has the potential to open the door to state legislatures arbitrarily overturning the will of the voters in their states—something Trump and his cronies tried to do after the November 2020 election. Several Republican-controlled state legislatures have already passed “electoral reform” bills that would concentrate this un-democratic power into their hands. It is entirely likely that this politically-motivated right-wing Court will support these moves. They would justify their decision based upon a literal reading of the Constitution’s text, but it would totally ignore the idea that the Framers intended to have a republic where the will of the voters matters. It would also ignore their thoughtful design of a system of checks and balances that ensured that power would not be concentrated within the hands of one branch of government. Justices of the Supreme Court, November 2020-June 2022 If the Supreme Court is going to insist on such a literal reading of the words of the Constitution, without taking into account any other historical context or precedents, they should in good conscious give up their practice of providing judicial review of legislation. This major role of the Supreme Court is not provided for by the Constitution. Instead, it was enshrined in precedent in the 1803 decision in Marbury versus Madison. So if the conservative justices are actually committed to only following the words of the Framers, as expressed in the text of the Constitution, they will have to discard 219 years of American jurisprudence. As I see it, the Supreme Court, as it is currently constituted, poses a dire threat to the continuation of the American experiment in representative democracy. The most practical way to check its power, and prevent a situation where elections no longer matter, is for American voters to turn out in historic numbers this November to elect Representatives and Senators who are committed to pushing through legislation to expand the number of justices on the Court. The number of justices on the Supreme Court changed six times before settling on nine, in 1869. There were nine Federal Courts of Appeals in 1869, and Congress specifically set the number of justices to match the number of Courts of Appeals. There are now thirteen Federal Courts of Appeal in the United States, so a total of thirteen justices on the Supreme Court would be in keeping with that precedent. *As a historian, I prefer the term Framers to refer to the wealthy white men who designed the US Constitution, and I like to use the term Founders to represent the much more diverse population of individuals who contributed in a wide variety of ways to establishing the United States of America. The author, Timothy C. Leech, received his PhD in US History from Ohio State University, after preliminary Graduate studies at Harvard. He is currently based in Ontario, Canada. He blogs under the handle Historian4Justice and tweets @History_Justice. 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