Cold open, Saturday Night Live, May 7, 2022

“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.

That is no excuse,” returned Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”

If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”

― Charles Dickens, Oliver Twist (qtd. Goodreads)

Comes now Allison Orr Larsen, associate dean and professor of law at William & Mary Law School, and witnesseth to wit: The “law office history” cited at great length in recent “originalist” US Supreme Court decisions “eliminates nuance, can be cherry-picked, and purports to provide clearer answers than history could possibly provide.” What Larsen calls law office history, as she makes clear, has more to do with the desired outcome of a case than it does with the actual historical record.

The result, Larson implies, is bad history and worse law.

I’m an old courthouse reporter, not a lawyer. But, that said, I know something about historical research and Anglo-American constitutional history (MA, history, University of Tennessee Knoxville; PhD, English, UTK, dissertation on “The Idea of Limited Government in English History Plays During the Reign of Elizabeth I, 1559-1603”). I wrote my thesis for a second master’s (in journalism at Penn State) on the language guaranteeing an open trial in state constitutions. And in retirement, I research and present papers on subjects ranging from hymnody to cultural assimilation to the Illinois History Conference. That doesn’t make me a great scholar, but I’ve spent enough time in both worlds to know how lawyers — and historians — think.

And I have to concur with Larsen on both counts of her indictment.

In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito claimed the “right to abortion is not deeply rooted in the Nation’s history and tradition.” But, to be blunt about it, he and the ideologues in the court’s extreme right-wing majority ignored the facts of history in order to advance a partisan agenda.

This matters because the conservative Republicans on the court, to varying degrees, claim to be “originalists” who believe, as Wikipedia phrases it, “that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted.” Yet, all too often, they don’t bother to get the prerequisite facts of history right.

The pattern is all too common on the court these days. As Larsen explains in a opinion piece for Politico, the justices tend to talk a good game but rely on amicus (or friend of the court) briefs filed by parties with an adversarial interest in the outcome of a case instead of professional historians:

The modern reality is the justices look to their friends and allies for historical sources, and rather than fact-check them — which they don’t have the time, resources, or expertise to do — they accept these historical narratives at face value. In the end, this creates an echo chamber where the history the justices cite is the history pressed to them by the groups and lawyers they trust, which conveniently comports with their preexisting worldviews and normative priors.

The term “law office history” Larsen credits to former Justice Stephen Breyer, who stepped down this month at the end of the June term. In his dissent in New York State Rifle & Pistol Association v. Bruen, Breyer in turn credited a UCLA Law Review article on the 2008 case (District of Columbia v. Heller) that concocted a personal right to bear arms out of a fanciful reading of Second Amendment history. That article defined law office history as “a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion.”

In a similar vein Dahlia Lithwick, who covers the Supreme Court for Slate magazine and is something of a fixture on the lecture circuit (see HERE, for example), has been known to observe that judicial opinions are typically written by recent law school grads; however brilliant they may be (and typically they are), they aren’t trained in historical research, historiography or allied disciplines.

Larsen notes that 140 amicus briefs were filed in Dobbs. It’s a growing trend, she suggests, and not a particularly healthy one:

These amicus briefs — sometimes signed by historians, sometimes not — are virtually all written by lawyers and often filed by motivated groups that are pressing for a particular outcome. The history they present, in other words, is mounted to make a point and served through an advocacy sieve. That distinguishes this type of history from the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately. As historian Alfred H. Kelly once put it, “The truth of history does not flow from its usefulness.” But usefulness is exactly the point when litigating a case at the Supreme Court — and historical sources are being used by the advocates to win. [Links and italics in the original.]

When a draft of Alito’s majority opinion in Dobbs was leaked to the public in May, the reaction was swift. It should have been humiliating.

“One cannot arraign the entire dishonesty of the ruling in a single column,” said David von Drehle of the Washington Post, headlined “In Dobbs, these untruths are self-evident.” (I consider that one a little masterpiece of the headline writer’s art.) Another headline, over an article by historian Maurizio Valsania in The Conversation: “Abortion decision cherry-picks history – when the US Constitution was ratified, women had much more autonomy over abortion decisions than during 19th century.” At Princeton, historian Melissa Reynolds weighed in with this:

I am not a scholar of Constitutional law. I won’t pretend to have the expertise to debate the merits of Alito’s legal reasoning on the Due Process Clause. I am, however, a historian who teaches a course on the cultural history of reproduction from ancient Greece to Enlightenment Europe, and I am here to tell you that Alito’s historical precedents, in fact, aren’t precedents at all. Nothing about legal history or tradition dictates the erasure of the protections afforded by Roe v. Wade.

Alito is right that abortion was not enumerated as a right in English common law or American jurisprudence until the 20th century. He is, nevertheless, wrong to say that abortion “at all stages” of pregnancy was considered unlawful in early America. Perhaps if he had more closely read the amicus curiae brief prepared for the court by the American Historical Association and the Organization of American Historians — the two most prominent associations representing the profession in the United States — he would have learned that common law “did not even recognize abortion as occurring” in early pregnancy. [Link in original.]

When the draft opinion was leaked in May, Anita Bernstein of Slate noted, “Alito’s Draft Opinion Obsesses Over 17th Century Abortion Law—and Gets It Completely Wrong.” (Whatever defects Alito’s reasoning may have had, it was a boon to headline writers.) Bernstein noted that Alito, or his law clerks, cited a  2006 book titled Dispelling the Myths of Abortion History. “It deserves a wider audience of readers,” she added. “Especially Alito, who appears not to have read it all.”

It’s hard to know where to begin in sorting out the myths, historical blunders and misrepresentations in Alito’s opinion. But it’s important, so I’ll try.

Perhaps the best place to begin is a special issue of The Docket, an online publication of the American Society of Legal Historians. “An undercurrent in the tidal wave of commentary on the Dobbs draft has concerned Justice Alito’s historical analysis that serves as the foundation of his decision to overturn Roe v. Wade,” said interim editor Gautham Rao. Hence the special issue, with articles on abortion in the 19th century, the “misogynist distortion of history” in the court’s preferred doctrine of “originalism” and Roe v. Wade.

Because of my past research into the early days of Anglo-American constitutional history, I was especially interested in an article titled ” ‘Abortion Was a Crime’? Three Medievalists respond to ‘English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime’.” The last part of that title (which is admittedly less catchy than some of the headlines) was a quote from Alito’s opinion.

To put it as mildly and kindly as possible, the three medievalists — Karl Shoemaker of the University of Wisconsin Law School, Mireille Pardon of Berea College and Sara McDougall of John Jay College of Criminal Justice — were not impressed with the quote:

The difficulty with the claim that “abortion was a crime” in the thirteenth century is that in the thirteenth century, and well beyond, neither the term “abortion” nor “crime” meant what Alito wants them to mean. When medieval authors defined the term “aborsus” with any clarity or consistency, their definitions bore little resemblance to the modern definition of abortion. In the medieval context, it meant the termination of a pregnancy only after what is known as “quickening.” This referred to when the mother could feel the fetus move, somewhere between 18 and 25 weeks. In theological, medical, and legal contexts, medieval writers saw this moment of “animation,” “ensoulment”, or “quickening” as a key stage in the development of pregnancy. This “quickening” implied the appearance of a human soul and thus, at this moment only, the potential beginning of human life.

In a word, the offense was theological, not legal. “To suggest, then, that there is a consistent and continuous line of cases establishing that abortion was a crime in our modern sense,” Shoemaker, Pardon and McDougall conclude, “is either incredibly bad history or simply dishonest.”

In most cases of what we would now consider an abortion, they explain, “the offense is treated as a sin to be absolved through penance. And even here it is clear that the underlying sin is the fornication that resulted in pregnancy.” However, in 13th-century England, they add:

[…] there is one kind of case in which Common Law courts did demonstrate an interest: assaults on pregnant women that resulted in miscarriage. Quickening was important in these cases because it determined whether such cases constituted a homicide and would be treated as a felony.

No discussion of this distinction, or any other, appears in Alito’s opinion. But he does quote a decontextualized snippet from Henry de Bracton, a 13th-century English jurist who figured prominently in my doctoral research:

Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated [quickened], and particularly if it be animated, he commits homicide.”

When the draft opinion came out, people had a lot of fun with that one.

Saturday Night Live pounced on it it with a cold open (see video embedded above) featuring Benedict Cumberbatch as a 13th-century jurist who advocates burning witches and a proposes a law against wearing “pointy shoes.” Dana Milbank of the Washington Post rushed into print with an article headlined, “That 13th-century law treatise Alito uses? Here’s what else it says.” Milbank notes delightedly that Bracton discussed “monsters, duels, bastardy, concubines, sturgeon ‘and other royal fish,’ the ‘pillory and the ducking-stool,’ and ‘a judgment with infamy’.”

I have no reason to doubt any of this, and I always enjoy Milbank’s op ed columns. But my recollection of Bracton is quite different, and I can’t help but think the poor old guy’s getting cheap-shotted here.

My dissertation involved the common law origins of what today we call the rule of law, and in Shakespeare’s day Bracton was revered as one of the fathers of the English common law. Even his Wikipedia page notes that medieval English lawyers were “introduced to the concept of case law and legal logic by Bracton’s book” and Bracton was “a de facto antidote to the absolutism of the Tudors and the Stuarts,” which is I how I remember him.

Bracton’s De Legibus et Consuetudinibus Angliae (The Laws and Customs of England) compiled between 1230 and his death ca. 1268, is now available online from the Harvard Law Library. So I checked out Alito’s quote, and it’s accurate enough. Harvard has: “If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the foetus is already formed or quickened, especially if it is quickened, he commits homicide.” (Alito’s translation has “animated” instead of “quickened,” but it’s obviously a different translation for the same thing.) But Alito fails to mention what else Bracton says about homicide (in the Harvard Law School’s translation):

Of necessity, and here we must distinguish whether the necessity was avoidable or not; if avoidable and he could escape without slaying, he will then be guilty of homicide; if unavoidable, since he kills without premeditated hatred but with sorrow of heart, in order to save himself and his family, since he could not otherwise escape [danger], he is not liable to the penalty for homicide. [Bracketed material in the original.]

That seems to me like an important qualification. Unless, of course, you’re cherry-picking your sources and twisting them around ever so slightly to support a preordained conclusion. I might have forgiven its omission in a freshman essay when I was a teaching assistant in western civ at UT-Knoxville, but in a grown man (an associate justice of the US Supreme Court, no less), it strikes me as intellectually dishonest.

***

It’s not entirely clear where Alito got his reference to Bracton. His citation is to a 19th-century translation of De Legibus and doesn’t cite any of the 140 amicus briefs. Perhaps he — or his law clerks — shepardized it on their own. But Larsen’s article in Politico points out a danger inherent in relying on adversarial briefs:

Professional historians are already complaining that the court got the history wrong in its recent cases, either by cherry-picking authorities or leaving out important nuance or both. When it came to the history of gun regulation, the court was awash in competing historical amicus briefs. The court chose one side, and in so doing caused historians to cry foul that the other history was ignored or distorted. In the abortion case, historians of the Middle Ages say some of the texts the court cites as proof that abortion was a crime in the 13th century are not about what we would think of as crime at all, but instead about “penance” imposed by the Church — an ambiguity easily lost on people who are unfamiliar with medieval Latin. Indeed, it is worth noting that much of the 13th-century history the court recounts seems to have come from a brief filed not by historians, but by professors of jurisprudence who publish on the moral implications of abortion — well-respected professors in their fields, perhaps, but certainly not medievalists. [Links in the original.]

Even the amicus briefs seem to be cherry-picked. The American Historical Association and the Organization of American Historians submitted one, for example, setting the historical record straight on the enactment of anti-abortion legislation in the mid- to late 1800s; it is cited in a footnote to Dobbs, but Alito — or his law clerks — mention it only to dismiss it: “We need not wade into this debate.” Another footnote quibbles with the AHA and the OAH over when Nebraska and West Virginia were admitted to the union; both footnotes strike me as preemptory and argumentative in tone and substance.

Had Alito (or his law clerks) waded into the historians’ research, however, he would have found the weight of evidence favors their contention that the “common law did not regulate abortion in early pregnancy.” The brief explains in terms that would be familiar to anyone who actually studied the history of the issue from the Middle Ages through the 1800s:

Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.

In other words, as late as the mid-19th century, the legal standard was more-or-less unchanged from the 1300s. Most American statutes outlawing the procedure were adopted in the 19th century at the behest of the American Medical Association and other physicians who wished to limit competition from unlicensed midwives. The AHA’s summary of the AHA/OAH joint statement on Alito’s final opinion in Dobbs is worth quoting in full:

The American Historical Association and the Organization of American Historians have jointly issued a statement expressing dismay that the US Supreme Court “declined to take seriously the historical claims of our [amicus curiaebrief” in its Dobbs v. Jackson Women’s Health Organization decision. “Instead, the court adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than thirty years. … These misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future. The court’s decision erodes fundamental rights and has the potential to exacerbate historic injustices and deepen inequalities in our country.” [Link and ellipsis in the original.]

Together, I believe the AHA and the OAH can legitimately be said to speak for the profession. The AHA, with 11,500 members, promotes “academic freedom, access to archives, professional standards, and the centrality of history to public culture,” according to the amicus brief. The OAH, which represents 5,000 historians in higher ed, libraries, museums, national parks, and historical societies, says its participation in the Dobbs case:

[…] is committed to the principle that the past is a key to understanding the present, and has an interest—as a steward of history, not as an advocate of a particular legal standard—to ensure that the Court is presented with an accurate portrayal of American history and traditions.”

When they say they’re in the case for historical accuracy, I’m inclined to believe them. That said, I am also inclined to believe Allison Orr Larsen when she says, of the court’s reliance on amicus briefs in general:

This reveals a systemic problem about relying on amicus briefs for historical narratives: The amicus market is dominated by motivated scholars. Because many neutral experts do not pay attention to the courts or participate in advocacy, the historical accounts presented to the justices are necessarily incomplete and motivated to build a particular argument.

The same can fairly be said of Justice Alito and the hyperpartisan majority on the US Supreme Court.

Links and Citations

American Historical Association and the Organization of American Historians, “History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the AHA and the OAH (July 2022),” https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022).

Anita Bernstein, “Alito’s Draft Opinion Obsesses Over 17th Century Abortion Law—and Gets It Completely Wrong,” Slate, June 9, 2022 https://slate.com/news-and-politics/2022/06/alito-draft-opinion-abortion-common-law-wrong.html.

Bracton: De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England attributed to Henry of Bratton, c. 1210-1268), Bracton Online, Harvard Law School Library, vol. 2, pp. 340-41 https://amesfoundation.law.harvard.edu//Bracton/Unframed/English/v2/341.htm.

Dobbs v. Jackson Women’s Health Organization, opinion of the court by Justice Samuel Alito, June 24, 2022, notes 24, 34 https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.

———-, brief for amici curiae American Historical Association and Organization of American Historians in support of respondents, Sept. 20, 2021, link available at SCOTUSblog https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/.

Amy Howe, “In 6-3 ruling, court strikes down New York’s concealed-carry law,” SCOTUSblog, June 23, 2022 https://www.scotusblog.com/2022/06/in-6-3-ruling-court-strikes-down-new-yorks-concealed-carry-law/.

Allison Orr Larsen, “The Supreme Court Decisions on Guns and Abortion Relied Heavily on History. But Whose History?” Politico, July 26, 2022 https://www.politico.com/news/magazine/2022/07/26/scotus-history-is-from-motivated-advocacy-groups-00047249.

Dana Milbank, “That 13th-century law treatise Alito uses? Here’s what else it says,” Washington Post, May 9, 2022 https://www.washingtonpost.com/opinions/2022/05/09/alito-13th-century-law-roe-opinion-snl/.

New York State Rifle & Pistol Association Inc. v. Bruen, June __, 2022, dissent by Justice Stephen Breyer, p. 26 https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf.

Melissa Reynolds, “On the absurdity of ‘deeply rooted’ tradition,” Daily Princetonian, May 10, 2022 https://www.dailyprincetonian.com/article/2022/05/history-abortion-rooted-tradition-absurd-scholar.

Roe v. Wade Cold Open, Saturday Night Live, May 7, 2022 https://www.youtube.com/watch?v=mLMp-1NdzR8.

Wayne Schiess, “Ten legal words and phrases we can do without,” Legalwriting.net, June 2, 2008 https://law.utexas.edu/faculty/wschiess/legalwriting/2008/06/ten-legal-words-and-phrases-we-can-do.html.

Karl Shoemaker, Mireille Pardon, and Sara McDougall, ” ‘Abortion Was a Crime’? Three Medievalists respond to ‘English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime’,” The Docket/Law and History Review https://lawandhistoryreview.org/article/abortion-was-a-crime-three-medievalists-respond-to-english-cases-dating-all-the-way-back-to-the-13th-century-corroborate-the-treatises-statements-that-abortio/.

Michael M. Simpson, “ ‘Comes Now’ — The Most Common Legalese Words Ever?” The Grammar Snob Blog, posted to Celia C. Ewell, The Researching Paralegal: Articles and Research for Legal Professionals, Aug. 30, 2014 https://researchingparalegal.com/2014/08/30/comes-now-the-most-common-legalese-words-ever/.

Maurizio Valsania, “Abortion decision cherry-picks history – when the US Constitution was ratified, women had much more autonomy over abortion decisions than during 19th century,” The Conversation, July 6, 2022 https://theconversation.com/abortion-decision-cherry-picks-history-when-the-us-constitution-was-ratified-women-had-much-more-autonomy-over-abortion-decisions-than-during-19th-century-185947.

David Von Drehle, “In Dobbs, these untruths are self-evident,” Washington Post, July 1, 2022 https://www.washingtonpost.com/opinions/2022/07/01/3-major-dobbs-untruths-about-abortion/.

Wikipedia articles on Henry de Bracton, originalism, rule of law and Shepard’s Citations.

[Published July 27, 2022]

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