When the Supreme Court engages in bad history

Supreme Court

Willamette University law professor and historian Steven K. Green makes a compelling case that the Supreme Court was “sloppy” in its use of history in the recent Espinoza v. Montana Department of Revenue decision.

Here is a taste of his piece at Religion Dispatches:

More broadly, the opinions in Espinoza raise questions about the Court’s use of history, particularly when it becomes a rule of constitutional law. History is “complex,” as Chief Justice Roberts acknowledged and Justice Breyer echoed, yet an adversarial legal forum is not the optimal place for settling the complexities of a historical event. The efforts of Catholic immigrants to find acceptance in nineteenth-century America have been documented, as has the resistance of Protestants who were suspicious of the commitment of a foreign-born Catholic hierarchy to American democratic values. 

That this episode coincided with the development of American common schooling has only added complexity to the historical narrative. Proponents of common schooling sought to create an institution where children of various faiths could acquire a commitment to republican values, while ensuring the financial security of the fledgling public schools. Public school advocates were also concerned about ensuring public accountability and public control over school funds. 

Funding a competing system of religious schooling—at the time, not solely Catholic but also Lutheran, Episcopal, Methodist, and Baptist schools, among others—would have stunted the development of public education, its advocates believed. Witnessing the rapid growth of Catholic immigration and its rising political influence in many cities, public education advocates also feared that funding religious schools would lead to religious competition and divisiveness. 

Embracing some of those arguments, nativists then added a layer of anti-Catholic prejudice that was guaranteed to appeal to some, but not all, Protestant Americans, including those who faced economic dislocation resulting from the influx of immigrant workers. At the opposite end of the spectrum was a cohort of liberal Protestants and freethinkers who opposed funding of religious schooling on grounds it violated church-state separation and the rights of conscience of those who didn’t want their tax dollars to support religious beliefs with which they disagreed. 

I could go on because there’s more to the story, but that’s precisely the point. This history is too complex to be decided in a judicial forum. In writing opinions, judges commonly draw on the information contained in the briefs of the parties and their supporting amici curiae. These briefs are written by lawyers (typically not historians) who advocate for particular outcomes and provide arguments and cherry pick data to support those resultsThis process is far removed from the enterprise of historical scholarship. 

Not only is legal adjudication not the optimal forum for unpacking the nuances of history, but a judge’s interpretation of a historical event takes on a greater significance. By “declaring” the defining meaning of a particular historical episode—something that historians refrain from doing—that interpretation becomes a constitutional rule. 

Read the entire piece here.