As the Supreme Court Focuses on the Past, Historians Turn to Advocacy

New York Times

04-08-2025

Chief Justice John G. Roberts Jr. studied history in college and wanted to become a historian. A taxi ride changed his mind.
'I was being driven back to school and started talking with the cabdriver, and he said, 'What do you do?'' the chief justice recalled at Georgetown's law school in May. 'I said, 'I'm a history major at Harvard.''
The cabdriver responded that he, too, had been a history major at Harvard.
The exchange was a turning point. 'I decided — nothing against cabdrivers — that law school seemed like a reasonable alternative,' Chief Justice Roberts said.
The chief justice might have tried to leave history behind, but it has caught up with him. As the Supreme Court's decisions increasingly turn on their understanding of the distant past, the number of supporting briefs from historians has exploded and their influence has grown.
Indeed, Justice Sonia Sotomayor said in 2023 that such filings, which lawyers call amicus briefs, are 'probably today the most important kinds of briefing,' considering 'the composition of the court and the direction it's been moving in and its jurisprudence.' She was referring to originalism, which seeks to determine the meaning of the Constitution when it was adopted.
Judge Jeffrey S. Sutton, a prominent federal appeals court judge, was already marveling at the beginnings of the phenomenon in a 2009 law review article, noting that 'honest-to-goodness historians, as opposed to lawyer historians,' had filed supporting briefs in major Supreme Court cases on the Second Amendment and efforts to combat terrorism.
'By my count (an admittedly rough count),' he wrote, 'historians filed more amicus briefs in the last four years than they filed in the preceding seven decades combined.'
Since then, bona fide historians have filed scores of additional briefs, according to a recent study in The Journal of American Constitutional History. And those filings have been cited by the justices at a sharply higher rate than other sorts of supporting briefs, except for those filed by lawyers for the federal government.
'With the rise of history-based arguments at the Supreme Court, we've had a rise in briefs filed by actual historians,' said M. Henry Ishitani, who conducted the study. A recent graduate of Yale Law School, he is teaching legal history at the University of Tulsa College of Law while finishing his history dissertation at Yale.
But the intersection of two sets of domains — of history and law, of scholarship and advocacy — can pose challenges.
Richard H. Fallon Jr., a law professor at Harvard who died last month, wrote about them in a 2012 essay prompted by a request to sign a supporting brief on a historical question.
The brief was informative, Professor Fallon wrote, and 'its argumentation fell well within the bounds of what lawyers could permissibly say in a brief.'
But he said no.
'The brief's presentation of the historical evidence bearing on the original understanding was not nuanced or balanced,' he wrote. 'A purportedly scholarly book or article that asserted its claims without further qualification would attract derision as one-sided if not misleading.'
'The Oxford Handbook of Legal History' devoted a chapter to an exploration of 'why historians often find amicus brief writing so vexed.'
But one of its authors, Sam Erman, a law professor at the University of Michigan, said the rising influence of historians was heartening.
'Courts take these briefs by historians seriously,' he said. 'For all the concern about how courts do bad history and never listen to the historians, actually they do listen to the historians to some degree.'
What they are hearing is a generally liberal message.
'Self-described historians have overwhelmingly chosen to file briefs where they can support progressive causes,' Mr. Ishitani wrote. Indeed, he found, 95 percent of the historians who signed supporting briefs making history-based arguments between 1987 and 2022 took liberal positions.
A far larger number of supporting briefs drawing on history were filed by lawyers and others who did not hold themselves out to be historians. Those briefs were more ideologically mixed.
What accounts for the difference? 'Undoubtedly,' Mr. Ishitani wrote, 'much of the discrepancy results simply from the demographics of a discipline that reportedly votes around 80 percent Democrat and 4 percent Republican, at least at the academic level.'
Another explanation runs deeper. 'Leading originalists have long waged a methodological war with constitutional historians,' Mr. Ishitani wrote. One of those originalists, Randy E. Barnett, a law professor at Georgetown, has objected to what he called 'the priesthood of historians' who claim to have the exclusive ability to 'tell us the meaning of our fundamental law.'
That stance, Mr. Ishitani wrote, 'connects with the broader populist suspicion against experts that has taken hold in recent decades on the right.'
Professor Erman said the prominent role of history at the Supreme Court has had at least one positive side effect, one that might have steered Chief Justice Roberts in a different direction in his college years.
'In an age when there are declining history majors and a terrible history job market, this is an audience of powerful people that care,' he said, referring to the justices. 'It's created jobs.'