Why More Historians Are Embracing the Amicus Brief

May 03, 2017

Courtesy of Tomiko Brown-Nagin
"To be a legal advocate is freeing," says Tomiko Brown-Nagin, a history professor at Harvard U. She filed an amicus curiae brief in the 2013 Supreme Court case over race-conscious admissions at the U. of Texas.

In 2006, when a case challenging plans to diversify school districts in Seattle and in Jefferson County, Ky., reached the Supreme Court, Tomiko Brown-Nagin felt compelled to weigh in.

Ms. Brown-Nagin, a history professor at Harvard University, had been studying and teaching about school segregation for many years. She knew that the courts had taken a more restrained approach to desegregating schools in recent years. So she filed an amicus curiae — a "friend of the court" brief — on the side of the school districts, arguing that a race-conscious policy to diversify their student populations is consistent with the 14th Amendment.

But the court disagreed, siding with parents who objected to the districts’ use of race to determine where to enroll their children.

"The court has not taken the historical evidence very seriously in the context of school desegregation cases," Ms. Brown-Nagin said. She feels that the Supreme Court has viewed the history of segregation very generally — often concluding only that it is wrong, and therefore that race should not be considered in admissions decisions. A historian, she said, would apply a more nuanced interpretation.

So when the issue came up again in Fisher v. University of Texas at Austin, a case challenging the university’s race-conscious admissions policy in 2013, Ms. Brown-Nagin, also a law professor at Harvard Law School, tried a different tack. She blended her legal training with her background in history to argue in another amicus curiae that without affirmative action, the university would be perpetuating a long history of unequal opportunities for black and Latino Texans.

"To be a legal advocate is freeing," Ms. Brown-Nagin said. "If I can’t be persuasive using the tools of the historian, then why not use my legal skills?"

This time, Ms. Brown-Nagin’s side won. But her dual experiences illustrate a conflict many historians feel when weighing in on legal cases: Can historians make their work count in the courts without compromising on their academic principles?

It’s a question more scholars now have reason to grapple with. Historians say they feel that they are being asked to write or sign amicus briefs in Supreme Court cases more frequently. With the confirmation of Neil Gorsuch, an originalist who seeks to interpret the Constitution as it was initially intended, the appeal of historical arguments is not expected to subside.

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."

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."

That doesn’t mean Ms. Gordon has any ethical concerns about participating in the cases she contributed to, even if it meant playing a different role than she was used to. She believed deeply in the side of the litigants she was working with, she said, and felt that the history supported their claims.

Legitimizing Tradition

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."

A 2013 Yale Journal of Law & the Humanities article made a similar point. The article described a case in which a brief filed by historians ended up quoted in Justice Anthony Kennedy’s opinion Lawrence v. Texas. In the case, two gay men successfully challenged Texas’ law prohibiting "deviate sexual intercourse with another individual of the same sex."

The historians’ brief, written by George Chauncey, a history professor at Yale University, challenged the state’s argument by noting that governmental discrimination against the LGBTQ community did not become widespread until the 20th century.

"But what if American history were replete with laws that targeted homosexuals specifically?" wrote Joshua Stein, the author of the journal article. "Would these same historians have argued that the law was justified in proscribing homosexual sodomy in perpetuity?"

This question has bled into debates waged between historians and constitutional originalists. Those debates have heated up on some blogs since Justice Gorsuch was confirmed, said Saul Cornell, an American-history professor at Fordham University, who has written briefs for cases involving Second Amendment rights.

"We don’t have a lot of theorizing about this new role of the public intellectual," Mr. Cornell said. "What does it mean to be a public intellectual in this new litigious world, where instead of writing for The Atlantic, you write an amicus brief?"

Michael Grossberg, a history and law professor at Indiana University’s Maurer School of Law, said writing legal briefs gives historians more control over the real-world implications of their work. Often their scholarship is already being interpreted by judges and lawyers anyway.

For example, a book Mr. Grossberg published in 1985 was later cited in an opinion by Justice Antonin Scalia, thrilling Mr. Grossberg’s dean. But Mr. Grossberg felt that the justice had incorrectly interpreted his work, and that there was nothing he could do about it. He has since written legal briefs about marriage; in those briefs, he said, he gets to tell the judges what he thinks his research should mean. This role allows for "a more interventionist stance in public policy debates," he said.

Ms. Brown-Nagin is a strong proponent of historians’ playing an active role in court. She says worrying about whether a position in one case will hurt an argument in another "assumes a consistency and coherence in law that is just not there."

Furthermore, there’s a growing need for people with a firm grasp of the facts to weigh in on consequential cases, she said.

"We’re in an era where there’s skepticism of expertise," Ms. Brown-Nagin said. "It’s important for historians and others to assert their authority and push back."

Nell Gluckman writes about faculty issues and other topics in higher education. You can follow her on Twitter @nellgluckman, or email her at nell.gluckman@chronicle.com.