Commentary: The Supreme Court gets an F in history for its rationales in abortion, gun rulings

It happens at least once a semester. My students and I will be discussing a contested political issue – say, affirmative action or capital punishment – and someone will ask, “Professor, what does history say about it?”

My answer is always the same: History can inform our contemporary debates, but it can’t resolve them. It tells us how people in other times and places acted and thought. But they lived then, and we live now. So we need to figure things out for ourselves.

Alas, that’s a lesson the Supreme Court’s conservative majority seems to have forgotten. In two decisions last week, on guns and abortions, the justices pretended that the past can give us singular answers to divisive present-day questions. That’s an almost childlike caricature of what my discipline does. And no serious historian would endorse it.

Let’s start with Clarence Thomas’ rambling opinion in New York State Rifle and Pistol Association Inc. v. Bruen, which struck down New York state’s concealed-carry law. Thomas used the word “history” 95 times, citing example after example to demonstrate how deeply gun ownership rights are embedded in the American past.

But as Justice Stephen Breyer noted in his dissent, we also have a long history of gun restriction – especially in the frontier West, which was anything but wild when it came to firearms. “The mission of the concealed deadly weapon is murder,” declared James Hogg, governor of Texas in the late 1800s. “To check it is the duty of every self-respecting, law-abiding man.” Texas was one of 10 states that passed laws against concealed weapons in the 19th century.

Thomas does acknowledge those regulations in his opinion but claims they were outliers – and irrelevant ones, at that, because so few people lived in the West. But as historian Saul Cornell has shown, all of America’s biggest cities – including New York, Chicago and Philadelphia – restricted concealed weapons in the 19th century, via outright bans or permit requirements.

Does that “prove” that such laws are wise or necessary now? Of course not, any more than the examples that Thomas cites “prove” the need to protect individual gun rights. As my students could tell you – if they’ve been listening at all – the fact that something happened yesterday doesn’t tell us whether it should continue today.

But the same fallacy appears in the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which struck down the constitutional right to abortion established by Roe v. Wade in 1973. Writing for the majority, Justice Samuel Alito invoked “history” 67 times. Whereas Thomas used history to show the deep roots of gun rights, however, Alito scoured the past to demonstrate the absence of abortion rights. “An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,” Alito asserted.

There’s just one problem with that statement: It’s false. Until the mid-1800s, most laws on the subject prohibited abortion only after the “quickening” – that is, after a pregnant woman could feel her fetus moving. Alito knows that, too, which is why he cited a single 1732 indictment – that’s right, just one – describing a pre-quickening abortion as “pernicious.” Then he skipped quickly to the late 19th century, when full-on abortion bans began. Like Thomas, in short, he cherry-picked the history that served his purposes and ignored the history that didn’t.

If Thomas and Alito submitted their opinions as research papers in my class, I would praise them for locating so many sources in support of their points of view. Then I would ask them to write second drafts, which included the equally voluminous evidence that contradicts their ideas.

That would make them less certain of their righteousness, as history always does. And if you think otherwise, you’re doing it wrong. Despite what the Supreme Court majority might imagine, the past speaks in many different voices. That’s why we need to listen to all of them, instead of limiting ourselves to the ones we want to hear.

Jonathan Zimmerman teaches education and history at the University of Pennsylvania. He is the author of “Whose America? Culture Wars in the Public Schools,” which will be published in a revised 20th-anniversary edition this fall by the University of Chicago Press.