Scholarship@WashULaw

Clio and the Court: A Reassessment of the Supreme Court's Uses of History

Document Type

Article

Publication Date

1997

Publication Title

Journal of Law & Politics

Abstract

While the Supreme Court frequently makes history through its landmark decisions, it also often uses history to reach them. This practice has not been without its critics. When the Warren Court was in the midst of transforming American constitutional law, some commentators argued that many of its decisions relied upon a "historical method of adjudication" that used history in a selective and unsophisticated manner in order to produce politically desired results. This criticism was seized upon by history professor Alfred Kelly, whose influential 1965 article Clio and the Court: An Illicit Love Affair charged the Court with manipulation of historical evidence for political purposes. Kelly likened the Court's history-based activism to the days of Lochner and Dred Scott and strongly condemned the writing of such slanted "law-office history."

Keywords

Warren Court, Constitutional Law, Supreme Court, Alfred Kelly, Lochner, Dred Scott

Publication Citation

Neil M. Richards, Clio and the Court: A Reassessment of the Supreme Court’s Uses of History, 13 J.L. & Pol. 809 (1997)

Link

Share

COinS