“High standards of historical scholarship” and the Supreme Court

Last month I wrote about how one of the recent big U.S. Supreme Court decisions clearly misstated the facts of the case at issue, and about the troubling implications of such misstatements.

As Ian Milhiser had argued at Vox, if events had actually occurred as the decision described, previous precedents would have applied. The majority opinion’s false description of circumstances therefore muddled what exactly it allowed while overruling past decisions.

Obviously the majority of justices on this court wanted to reverse those decisions. And I think their willingness to do so based on obviously false factual statements undermined the authority of the court and the law.

Yesterday the Organization of American Historians, the American Historical Association, and other groups of history professionals issued a joint statement criticizing how another recent Supreme Court decision, Dobbs v. Jackson, badly misrepresented the more distant past:

Historians might note that the Court’s majority opinion refers to “history” sixty-seven times, claiming that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

Our brief shows plentiful evidence, however, of the long legal tradition, extending from the common law to the mid-1800s (and far longer in some American states, including Mississippi), of tolerating termination of pregnancy before occurrence of “quickening,” the time when a woman first felt fetal movement. The majority of the court dismisses that reality because it was eventually—although quite gradually—superseded by criminalization. In so doing the court denies the strong presence in US “history and traditions” at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.

These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. . . . The OAH and AHA consider it imperative that historical evidence and argument be presented according to high standards of historical scholarship. The Court’s majority opinion in Dobbs v. Jackson does not meet those standards, and has therefore established a flawed and troubling precedent.

In essence, the historic trend to bar or even criminalize abortions that gained steam in the late 1800s didn’t fit with the conservative justices’ claim to follow precedents from when the Constitution was written—“originalism,” so-called. They couldn’t claim that later generations had become more enlightened because people might then want to apply the same insight to other matters. So those justices simply proclaimed that the historical record really did fit their claims.

As the historical organizations say, the result is distorted history that’s nonetheless “authoritative for legal reference.” This Supreme Court is asking us Americans to base our system of laws on claims that are demonstrably not true.