History and Tradition in the Courts: Pitfalls and the “What Now?”
Beginning in 2022 with the New York State Rifle & Pistol Association Inc. v. Bruen Supreme Court case, “history and tradition” has become the new basis for much of conservative originalist arguments. In the 2022 Supreme Court case of Dobbs v. Jackson Women's Health Organization, judges reversed Roe v. Wade and declared there is no constitutional right to an abortion in part because the right to an abortion is not deeply rooted in American history. The same year, the Supreme Court’s ruling in Kennedy v. Bremerton School District affirmed a high school football coach’s right to prayer after games, a conclusion drawn on “historical practices and understandings.” In the contentious 2024 case of Students for Fair Admissions v. Harvard, which overturned the use of affirmative action in college admissions processes, Justice Clarence Thomas’ concurring opinion relied on history to justify the unfairness of affirmative action. In the 1927 Supreme Court case Gong Lum v. Rice, a Chinese-American girl, was denied entry to a Whites-only school; therefore, Justice Thomas argued, Asian Americans could not be disadvantaged to remedy historical injustices against Black Americans, as both groups suffered educational discrimination. The emergence of “history and tradition” tests have sparked widespread debate over the role of history in the courts.
History has long been a pillar in court decisions: the reliance on court precedent requires the study and knowledge of previous court cases and their decisions. As an integral part of their practice, courts review previous related cases to determine how to approach the ones presented to them. However, this shift from legal history to general history has many legal professionals questioning the role of history in court decisions. With “history and tradition,” courts must consider vast amounts of history relating not only to relevant past laws and cases, but also to historical practices and societal beliefs. While history provides more insight, the incorporation of “history and tradition” introduces many complications regarding historical bias and qualifications.
Historical research and judgments can be framed in biased ways or purposefully omitted. In the case of Students for Fair Admissions v. Harvard, Justice Clarence Thomas’ concurring opinion compares historic discrimination between Asian Americans and Black Americans, using Gong Lum v. Rice and the denial of the Chinese-American Martha Lum from an all-White school to prove the existence of educational discrimination against both groups. In his conclusion, Justice Thomas wrote: “Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants.” Justice Thomas seems to conclude that this historical case proves an equivalent experience of discrimination in schools between Asian Americans and Black Americans. What Justice Thomas leaves out, however, is that in the aftermath of the case, Martha Lum and her family moved to another state, and ultimately attended an all-White school—a kind of advantage uncommon for Black Americans. When utilizing history in the courts, there is no simple verification of historical omissions or misrepresentations, much less a survey of entire histories relevant to the subject matter.
Beyond potential bias, historical qualifications also present a complication for the courts. In an interview with Organization of American Historians, Harvard Professor Tomiko Brown-Nagin discussed the difference between an amicus brief, which is meant to promote a certain interpretation of the law in a specific case, and a historical inquiry, which is based on an abstract and nuanced exploration of similar and contrasting history. Lawyers, judges, and other legal experts are trained in the history of legal issues and interpreting law, but not so much in piecing together complex historical narratives that include contrasting views. For lower courts with fewer resources, conducting a thorough historical review becomes even more challenging, which may lead to more superficial historical reasoning being used in court decisions.
As the use of “history and tradition” solidifies within the American judicial system, it is imperative to adapt judicial standards to promote more holistic and qualified historical reviews in court decisions. While the potential downsides and biases of “history and tradition” are felt fully, the incorporation of more history into the courts opens more argumentative ground for lawyers and potential revitalization and transformation of the legal profession.