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Opinion
Noah Feldman

Supreme Court Wakes Up in 1875

Today's lone decision, Brandt Revocable Trust v. U.S., is an object lesson in this important form of historical make-believe. 
So, your honors, is that a right-of-way or an easement? Photographer: Torsten Blackwood/AFP/Getty Images
So, your honors, is that a right-of-way or an easement? Photographer: Torsten Blackwood/AFP/Getty Images

One of the great pleasures and benefits afforded by the Supreme Court is the illusion of historical continuity. The court's elegant building is a good example: it looks as old as the Capitol -- maybe as old as the Acropolis -- but it only dates to 1935. The same goes for one or two Supreme Court opinions each year, in which the court pretends it's the same institution that has always existed, not a rotating body of new justices bound by historical circumstance.

Today's lone decision, Brandt Revocable Trust v. U.S., is an object lesson in this important form of historical make-believe. The court traced its logic back to the great era of railroad expansion in the mid-19th century -- and in so doing told us more about its vision of itself than about railroads or U.S. history.