Amicus Briefs from Historians

May 8th, 2017

With the confirmation of Justice Gorsuch, the Chronicle of Higher Education reports that “Historians say they feel that they are being asked to write or sign amicus briefs in Supreme Court cases more frequently.” The rumors of originalism’s death have been greatly exaggerated.  CHE highlights some of the difficult ethical choices historians must make when signing amicus briefs.

Many historians welcome a consequential, real-world application for their sometimes esoteric work. But writing a legal brief requires putting aside some of the complexity of a scholarly interpretation in favor of a position that will give their side the strongest argument possible.

“Lawyers really need to deal in simple either-ors; yes or no,” said Linda Gordon, a history professor at New York University who has written amicus briefs for abortion-rights cases that have made their way to the Supreme Court. “We as historians frequently have to come up with perspectives that are much more nuanced.”

Indeed, by signing a brief, the historians give credence to the principle that discrete constitutional questions can be answered with “yes” or “no” by looking to history–a proposition many routinely rejected.

But historians are wary of oversimplifying the past or giving it more weight than they feel is appropriate. By arguing in a case that history is on their side, they are in a sense legitimizing the idea that tradition should be respected. As Ms. Gordon put it at a panel discussion of historians who participated in court cases at the Organization of American Historians’ recent annual meeting: “Tradition does not, of course, always lead to good policy.”

The entire proposition of a brief is to argue that one side should win, and the other side should lose. Such advocacy is at odds with the normal scholarly discourse. CHE explains:

For example, the absence of a law specifically prohibiting abortion in the 18th century wouldn’t necessarily mean everyone was in favor of abortion access at that time. But acknowledging that ambiguity would not help Ms. Gordon’s case.

“When I am teaching graduate students, I always tell them that if they are discussing a person or policy they disagree with, it’s their responsibility to present both sides of an issue fairly,” she said. “That is completely opposite from what is done in the law.”

I struggle with these sorts of questions in my limited legal practice. When I write an amicus brief, I would not write something that I would also not write in a law review article. (I no longer sign briefs that I did not substantially participate in writing). For that matter, when I blog or tweet, I would not write something that I would not write in a law review article. Likewise, when I write a law review article, I would not write something that I would not put in a pleading, subject to Rule 11. If I ever make an error in my writings, I will correct it, in the same fashion I would apprise a court of an error. In addition, I do not accept payment for any amicus briefs I write. (I am working low-bono in Defense Distributed v. Department of State, a case I was invited to participate in based, fittingly, on my earlier scholarship on the topic). I accept honoraria for articles I write, so long as I maintain complete editorial control. (I’ve declined opportunities for paid briefs and articles that do not meet my terms). I recognize these standards are somewhat ad hoc, though they establish guardrails to help me maintain my role as a scholar first, and advocate second.