Justices’ History Focus Tests Lawyers, Judges, and Law Schools

Conservative US Supreme Court justices’ reliance on history and tradition to settle contentious constitutional questions has judges and lawyers saying the new method of analysis makes their own jobs harder.

The 6-3 conservative majority has cited centuries-old treatises in overturning abortion rights, pointed to English history dating to the late 1600s in allowing more guns to be carried in public, and looked to state practices at the time of the country’s founding in rejecting a free-speech challenge to trademark restrictions.

Some lower court judges now go to the library to do their own historical research as a result and take an interest in candidates for clerkships who’ve done this kind of work before.

“The trick is we all have to go back in time and become historians,” Judge Pamela Harris, an Obama appointee on the US Court of Appeals for the Fourth Circuit, said at a law conference at William & Mary last month. “Short of that I find this to be very, very challenging.”

Litigating disputes over state and federal laws requires a deep dive into legislative history, but there’s a customary universe of material and it’s relatively easy to track down, said Daniel Geyser, who chairs the Supreme Court practice at Haynes and Boone.

“History and tradition I do think is tough because you’re expanding the playing field to include everything that happened, potentially at both the state and federal level at a given point in time, which could have been hundreds of years ago,” he said.

For appellate judges, the fact that one judge is doing independent research has raised practical questions about what other judges on a three-judge panel are required to do when deciding a case.

“If one judge is going to do all the independent research, does every judge joining the opinion have to go back and do all the same research?” Harris asked.

Eighth Circuit Judge David Stras doesn’t find the research more difficult, just more time consuming.

“The one thing that is a little bit of a challenge is to do it correctly,” the Trump appointee said at William & Mary. “And a lot of judges don’t want to spend the time in the library.”

Trying to do it right takes months, he said.

Selling Point

Having a background in history and historical research has given some law students an advantage when applying for clerkships.

Easha Anand, who serves on Stanford Law School’s Clerkship Committee, can think of multiple students who’d done major originalist historical research and how that became their selling point to judges across ideologies.

“The students have many, many other qualities that lead to them getting interviews and clerkships, but it certainly doesn’t seem to hurt and I think judges are often interested to hear me talk about that,” she said.

Historical research isn’t a skill that law students traditionally learn.

“Generations of law students are familiar with distinguishing cases,” said Duke Law professor Joseph Blocher. Now students are expected to make conclusions about history, he said. “And you have to know context to do that well.”

Blocher pointed to the court’s decision last term in US v. Rahimi as an example. The justices considered the legality of a law that banned firearms for those subject to a domestic violence restraining order. The party challenging the law argued it was unconstitutional because founding-era laws didn’t disarm domestic violence offenders.

To understand why the justices analogized to “surety” law to uphold the present-day restriction, an attorney has to know that the understanding of domestic violence has changed dramatically since the early days of the nation, Blocher said.

“That feels so distant from what” students have been taught to do in law school, he said.

And while the focus on history and tradition has been most pronounced in Second Amendment cases, it has spread to other areas of constitutional law, including cases on abortion, the First Amendment, and intellectual property.

“There’s been a huge change across all of constitutional law,” Blocher said.

Behind the Curve

So far, the response from law schools to the change has been sporadic in terms of how history and tradition has been incorporated into the curriculum.

That’s in part because the Supreme Court is still trying to work that out, said Lisa Eskow, who is co-director of the Supreme Court Clinic at the University of Texas at Austin School of Law.

Again, Rahimi provides an example. Even though the decision was 8-1, the ruling produced five concurrences. Most focused largely on how to use history and the relevant time periods, and in particular how close an old law has to be to the new one to be relevant.

Justice Neil Gorsuch said the court tried to honor the original meaning of the Constitution in requiring a historical analogous regulation and that should be the guide. But Justice Amy Coney Barrett said the use of history walks a fine line between original meaning and expectations about how the text would apply.

“There’s confusion even on the court on how to do it,” Eskow said.

As a result, it’s largely left to individual professors to decide when and how to incorporate history and tradition, she said.

Fordham University history professor Saul Cornell said law schools aren’t taking up the charge to teach students how to do legal research. He said that “right when this is most important, law schools don’t have the infrastructure” to meet the moment.