Supreme Court turns to history: How does past speak to the present?

Laughter is not a rare occurrence during oral arguments at the U.S. Supreme Court, but it is rare that Justice Samuel Alito is the jokester.

Yet late in 2010, the high court heard a case about a California law restricting the distribution of violent video games. If the government can censor violent content, asked Justice Antonin Scalia, then what next? Smoking? Drinking?

The deputy attorney general of California began to answer, then Justice Alito cut in.

“I think what Justice Scalia wants to know is what James Madison thought about video games,” he quipped.

A decade later, Justice Alito – decidedly not joking about history or how to interpret the original meaning of the Constitution – wrote the opinion striking down the right to abortion. Unenumerated rights – which are not explicitly mentioned in America’s founding document, but instead implicitly protected by the 14th Amendment – are constitutional only if they are “deeply rooted in [our] history and tradition,” he wrote in Dobbs v. Jackson Women’s Health.

“Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the ‘liberty,’” he added.

History has always played an important role in American law, and the Supreme Court – populated by individuals with lifetime appointments and little public accountability – is inherently less likely to be swayed by current thought than the rest of government. But deciding the legal direction of the country by looking backward can be an awkward enterprise, particularly when it concerns applying constitutional rights to modern times.

Focus on the past