AN APPEAL TO BOOKS.

• Author: Ali, Amir H.

This feels a fit, even urgent, moment to celebrate our books and the role they play vis-a-vis the law, the courts, and the truth.

As this issue goes to print, our nation's highest court faces forceful criticism that some of its most significant decisions have been detached from objective fact. In recent Terms, the Supreme Court's majority has doubled down on deciding major constitutional questions based on "history and tradition"--that is, the majority's understanding of what the nation was like centuries ago. (1) Just as quickly as these justices praised the objectivity of their fealty to history, they met widespread rebuke from historians. These actual experts in history observed that the Court's work fails basic standards for historical analysis and distorts historical facts toward a particular end. This occurs at a time when public confidence in the Supreme Court is at an all-time low, (2) and concern for the spread of misinformation is high and rising. (3)

This predicament--anointing "history and tradition" the centerpiece for delineating important rights, only to offer an inexpert and inaccurate historical account--has profound societal implications. It differs from the usual critiques of judicial decisionmaking, such as disagreement as to what the outcome is in a case, what the law is, or what methodology is best. The worry here is that a branch of government, led by the country's highest court, is issuing opinions that endorse questionable--even fringe--accounts of our nation's history. Those decisions are broadcast with a built-in megaphone: Supreme Court opinions, along with any false history in them, are widely disseminated by a media characterized by rapid news cycles and 280-character takes, rather than critical analysis. The Court's major opinions, along with any dubious history, are incorporated into textbooks that the next generation of students will read in their high school civics classes. And because the Supreme Court gets the final word in our legal system, a whole machinery of lawyers and judges will be required to accept the Supreme Court's version of history as precedent and even build on it, irrespective of its truth.

So, how do we set the record straight? That question--how society responds when the judiciary embraces an untrue or incomplete narrative of who we are and how we came to be as a country--is an immense one. While I don't have all the answers, I am sure of one thing: books will have a central role to play. The Supreme Court binds lawyers and judges in our courts, but it does not bind an author's pen. Books, in their depth and their unique ability to pull us in, will tell us the full story.

Admittedly, this inverts the usual orientation of the legal profession when considering the relation of books and courts. Many prior Forewords to this esteemed Book Review, for instance, indulged the question of how books can or have been useful to, or endorsed by, courts. (4) This orientation toward seeking validation from courts is second nature for us lawyers. We look to judges every day to evaluate and judge the arguments we make. Our legal education places judicial opinions at the center of most classes and exams. Many legal scholars, including one whose book is reviewed in this volume, convey their prominence based on the number of times they've been cited by justices. (5)

This is a moment to resist that reflex--to ask not whether and how our literature has been validated by courts, but whether and how our courts have been validated by literature. After all, if our books don't tell us the whole story, who will?

1. AN INCOMPETENCE TO RECOUNT IMPARTIAL HISTORY

   In its 2021-2022 Term, the U.S. Supreme Court's majority took a decisive turn toward defining our constitutional rights based on its understanding of the country's affairs centuries ago, when the relevant text was adopted. In those cases, the majority repeatedly stressed that its outcome was compelled by history--in some cases, so much so that the Court had to overrule decades-long precedent. The majority also commended its own objectivity for fastening itself to history.

   This resort to and self-praise for historical analysis was front and center in the Court's most politically charged cases of the 2021-2022 Term. In New York State Rifle & Pistol Association v. Bruen, (6) the Court extended the Second Amendment to protect the public carry of handguns based on what it called a "straightforward historical inquiry." (7) Going further than any prior Second Amendment case, the Court declared any governmental interest in preventing gun violence irrelevant; a gun regulation may stand only if determined to be "consistent with the Nation's historical tradition." (8) And according to the Court's "long journey through the Anglo-American history of public carry," there was "no historical basis" for prohibiting public carry and, to the contrary, "history reveals a consensus" of guaranteeing it. (9) The Court commended its recourse to history as a "more legitimate" and "more administrable" way to delineate rights. (10) One justice in the majority wrote separately, at least in part, to commend the majority's "exhaustive historical survey." (11)

   The next day, in Dobbs v. Jackson Women's Health Organization, (12) the Court's majority espoused the same adherence to history, this time as the basis for overruling its fifty-year-old precedent in Roe v. Wade. The majority wrote that this outcome was compelled by "respect for the teachings of history" and its conclusion from historical sources that the right to abortion was not "rooted in our Nation's history and tradition." (13) The Court again praised the objectivity of this history-centered inquiry, assuring readers that resorting to history safeguarded against an "unprincipled approach" and "the natural human tendency to confuse what [the Constitution] protects with [the justices'] own ardent views about the liberty that Americans should enjoy." (14)

   The unstated assumption, of course, is that the Supreme Court can reliably ascertain the "teachings of history" in the first place. Looking at the institution on its face, there's little reason to think it's well suited to do that. Justices are not historians; each generally has an undergraduate degree followed by training in the law (and even those credentials are not constitutionally required). Their legal education teaches them how to be lawyers--how to read and analyze caselaw--not how to accurately and impartially examine historical sources. Nor are the justices assisted by historians. The law clerks who help them assess arguments, research law, and draft opinions are generally a few years out of law school with a year or two of experience working for other judges. (15)

   Rather than draw contextualized and accurate conclusions about the state of the country centuries ago, the judicial branch is designed to resolve particular factual and legal disputes between parties, based on the evidence and arguments they offer. Trial courts make findings about what occurred in an individual case based on the evidence. And judges all the way up the system hear arguments and determine who has the better one. That this adversarial process provides a mechanism to decide which witnesses are credible...