Law School Dean: Whose History is it at SCOTUS?

The Supreme Court’s recent decisions on guns, abortion and religion that sent quakes through the U.S. legal system have a common thread: the use of history to answer constitutional questions. Many of the court’s current justices — particularly justices on the court’s right wing — tend to turn to history because they believe doing so is a more objective, less discretion-laden form of judicial decision-making. Justice Clarence Thomas, writing for the court in the guns case, put it this way: “Reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to make difficult empirical judgments.”

This is a significant move. 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’s decisions — on the assumption that it is more legitimate than other forms of judicial discretion — 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.

Increasingly, the justices are relying on amicus briefs for historical information. Amicus briefs — also called “friend of the court” briefs — are submitted by third parties and have gone through a tremendous growth spurt at the Supreme Court in recent years. By way of comparison, there were 23 amicus briefs filed in Roe v. Wade and over 140 filed in Dobbs v. Jackson Women’s Health, the decision that overturned it. That is a new trend. Hundreds of amicus briefs are now filed in big cases; the justices particularly value (and love to cite) the briefs that provide new factual information, including historical accounts.

These amicus briefs — sometimes signed by historians, sometimes not — 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 put it, “The truth of history does not flow from its usefulness.” But usefulness is exactly the point when litigating a case at the Supreme Court — and historical sources are being used by the advocates to win.