SCOTUS Watch: Orders & Bad History

Dobbs and Bad History

The Supreme Court these days is big on "history and tradition." 

It is used to address the religious clauses, the Second Amendment, and to overturn Roe v. Wade. History and tradition come off as a form of originalism. Not quite. It is not the same thing. Still, like "textualism" and "originalism," the two concepts are often promoted by the same people. 

Originalism ties itself to specific points of ratification. This leads to certain complications such as the fact things changed between the Bill of Rights and the Fourteenth Amendment. These days, however, a "two-track" system for federal and state law generally is disfavored. A "living" model avoids such problems. 

Originalism is bad constitutional law. It is impractical, unnecessary, and bad in principle. We should apply the Constitution by current understanding, which we built up over time with new knowledge and experience. Meanwhile, we also have multiple legal techniques to use.

I have a degree in history. History is important. It's part of constitutional interpretation. Trying to use it as a primary means to solve recent decisions, especially if the "history" is a point in time of the distant past, is a fool's game. People have spelled this out in detail regarding the Second Amendment. 

The conservative usage of history is more troublesome when they simply do history wrong. This essay (with a citation to a longer paper) shows how Dobbs screws up 19th Century abortion law. See also here, which uses Lawrence v. Texas as a case study of how to correct the misuse of history. 

The essay explains the different context and the often limited nature of the bans. I would mix in more about how prenatal life (helped by an improved understanding of prenatal development) was part of the story. It doesn't change the bottom line that much. 

Justice Jackson has begun trying to provide a "liberal originalism" to provide a counterpoint. Be wary but it can be interesting. I am interested in possible separate opinions in upcoming cases involving guns, abortion, and so on on this front. Like religion, history, and tradition is not just a field for conservatives. 

Order List

There have not been any additional orders since last week after the trans-related case. The next execution scheduled is May. There have been additional "relists" (a case was scheduled for a conference and then "relisted" again) after a notable lull. 

We have a four-page Order List. As usual, there are a few interesting tidbits. Why was only one of two "motions for leave to proceed as a veteran" granted? Why did Roberts not take part in a case? Kavanaugh (without comment) noted he would have taken a Federal Arbitration Act case.

The Court took two cases (granted cert) for full argument. One was a technical case involving attorney fees. Another involved the question if a federal law was correctly applied to so-called certain "ghost guns." They have not handed down the bump stock opinion from this term. 

Upcoming

This will be a busy (four days) week for oral arguments. The big "hot button" cases involve homelessness and the Eighth Amendment, abortion and federal law (emergencies), and Trump immunity. There is also a National Labor Relations Board case that might be of some note. 

This is the last week of oral arguments. May and June will bring a range of opinions since only around a third of them have been released. Meanwhile, other stuff will happen. 

Strict Scrutiny Podcast now has YouTube videos so you can see some of the reaction shots and so on.