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 ...