“History has always played a role in constitutional interpretation, for some jurists more than others. But if history is going to be a key driver for the Supreme Court\u2019s decisions \u2014 on the assumption that it is more legitimate than other forms of judicial discretion \u2014 then it is imperative to ask where the justices are getting their historical sources, whether those sources are fact-checked, and (most importantly) who is narrating the history.<\/p>\n\n\n\n
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.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “the Supreme Court should require anyone who files an amicus brief to disclose who paid for it. Current rules require disclosure only of whether the party contributed financially or otherwise to the brief, but they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party).”<\/p>\n\n\n\n …<\/p>\n\n\n\n “the justices should borrow a practice from the laws of evidence and forbid any amicus brief presenting historical or other factual claims from adding accompanying legal argument. At trial in lower courts, there are strict limits on expert witnesses offering opinions on the law or generally opining on the case\u2019s outcome. The idea is that this legal commentary detracts from the status of the expert as a neutral adviser, and that it oversteps the value and point of an expert witness in the first place.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “justices should build in a process to request the specific history they are interested in earlier in the case\u2019s timeline \u2014 in an attempt to recruit historians who may not be following the court\u2019s every move but who are actual experts in the matter. If historians of medieval law knew their knowledge on abortion in the 13th century was so valuable when the court took the case (as opposed to after the leak in Dobbs<\/em>) there might be incentive for more of them to participate in the briefing process.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “If we are going to empower judges to referee history we must start paying more attention to the process through which they acquire that history. Many Americans see the court\u2019s recent decisions as a threat to judicial legitimacy; perhaps one under-recognized threat to that legitimacy lies in the process used to make them.”<\/p>\n\n\n\n
Increasingly, the justices are relying on amicus briefs for historical information. Amicus briefs \u2014 also called \u201cfriend of the court\u201d briefs \u2014 are submitted by third parties and have gone through a tremendous\u00a0growth spurt<\/a>\u00a0at the Supreme Court in recent years.”
…
“These amicus briefs \u2014 sometimes signed by historians, sometimes not \u2014 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\u00a0put it<\/a>, \u201cThe truth of history does not flow from its usefulness.\u201d But\u00a0usefulness<\/em>\u00a0is exactly the point when litigating a case at the Supreme Court \u2014 and historical sources are being\u00a0used<\/em>\u00a0by the advocates to win.”\u00a0\u00a0
…
“The modern reality is the justices look to their friends and allies for historical sources, and rather than fact-check them \u2014 which they don\u2019t have the time, resources, or expertise to do \u2014 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.”
…
“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\u00a0caused historians to cry foul<\/a>\u00a0that the other history was ignored or distorted. In the abortion case,\u00a0historians of the Middle Ages<\/a>\u00a0say 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 \u201cpenance\u201d imposed by the Church \u2014 an ambiguity easily lost on people who are unfamiliar with medieval Latin. Indeed, it is worth noting that much of the 13th-century history\u00a0the court recounts<\/a>\u00a0seems to have come from a brief filed not by historians, but by professors of jurisprudence who publish on the moral implications of abortion \u2014 well-respected professors in their fields, perhaps, but certainly not medievalists.<\/p>\n\n\n\n