The Role of History in Judging Disputes About the Meaning of the Constitution

Abstract

For the last ninety-three years, the United States Supreme Court has started its Term on the same day. On the first Monday of October, the Court returns from its summer recess, releases orders in hundreds, if not thousands, of cases, then hears the first oral arguments of the Term.

Each year (in recent years), the stage is set the same way. Leading Supreme Court advocates fill the front section of the courtroom, which is reserved for members of the Supreme Court Bar. A score of journalists occupies the press section to the immediate left of the Justices. The Clerk of the Court greets members of the bar and the day’s advocates. Closer to the front right, the guest benches fill with the Justices’ spouses and friends, senators and other dignitaries. The back of the courtroom, where the general audience sits, is full, whether the day’s cases concern matters of great public interest or a dry-as-chalk tax issue. The day’s advocates sit directly in front of and conspicuously below the Court, waiting nervously for the questioning, remaining all too conscious of their last meal.

As 10:00 a.m. approaches, all eyes turn to the thirty-foot-high curtains at the front of the courtroom, where the nine Justices emerge when the second, not the minute, hand marks the new hour. A momentous opening day turns on the most modest of developments: a Justice sporting a new beard; a Justice looking healthy after a medical scare during the summer break; or a Justice adding a flourish to his or her robe. Yet tradition, not novelty, usually is the order of the day. Change comes slowly at the Court and much of the anticipation about returning to the Court after the three-month summer break is about seeing the same routine — the same Justices doing the same things the way they always have done them. When something new happens at the Court, it demands attention. This essay addresses one emerging trend at the Court — the increasing prominence of history in debates over the meaning of the Constitution — and the issues it raises for judges and advocates alike.

Note: A version of this Essay was delivered as the inaugural David Aldrich Nelson Lecture in Constitutional Jurisprudence at Hamilton College on September 17, 2008

Keywords: constitutional law, history, Supreme Court