Historians’ Amicus Briefs: Defining the Genre and Measuring Its Discursive Influence with Our “Originalist” Supreme Court

The number of historians’ amicus briefs filed with the Supreme Court exploded in 2020-2021; almost one quarter of all heard cases received a brief. This phenomenon – which includes the AHA’s own brief in Dobbs – has contributed to the expanding universe of “history-based briefs,” (HBBs) an overarching genre that includes originalist and other history-based analyses. Federal judges and other legal practitioners have in turn identified the HBB as “today’s Brandeis brief” – the leading means for nongovernmental amici to influence the Court.

My poster would present the results of my empirical study on the rise of historians briefs and their evolving relationship to originalist discourse at the Supreme Court.

Since the filing of the first historians’ briefs in Patterson (1988) and en masse in Webster (1989), scholars have drawn on their personal experiences with the practice to debate its ethics. No one has yet attempted to establish the complete universe of these briefs and their influence on the Court.

With my first paper for this project, I sought to fill this gap in our historiographic understanding. I established a comprehensive database of “core” historians amicus briefs (CHABs) using a non-gatekeeping definition that incorporates all HBBs filed by 1+ persons claiming to be a historian.

Analysis of the resulting database produced results that are especially amenable to graphical formats, with numerous charts comparing growth and influence across time.

These results are especially significant:

• High Growth: After a 1990s average of ~1 CHAB filed per year, CHAB filings rose to peaks of ~5/year in 2005-2008 (with Heller and the Guantanamo habeas cases) and ~7.5/year in 2017-2020, with growth exceeding the overall rise in amicus filing. All CHABs had 1+ professional academic filers.
• High Influence: Measured by the citation-rate industry standard, CHABs enjoyed a comparatively high degree of influence on judicial analyses. 27.2% of CHABs received 1+ citations, compared to the 5-12% average for nongovernmental amici.
• Facilitator of Liberal Coalitions: Every CHAB-citing majority opinion has been unanimous (three cases) or a liberal-coalition victory (seven). These seven included four landmark 5-4 decisions. Four were written by conservative justices Gorsuch and Kennedy. Statistically, Gorsuch is by far the most CHAB-receptive majority-writer.
• Tool of Liberal Dissent: Justices Breyer and Stevens have been the most prevalent dissent citers; their Heller dissents demonstrate how moderate liberals seek to use CHABs to swing these history-inclined conservatives.

Intriguingly, conservative groups filed only 6% of CHABs, with only three cases seeing politically opposed CHABs. Meanwhile, conservative amici have filed hundreds of other HBBs, usually set in originalist analytical terms. Given the inclusivity of my CHAB definition, this indicates that conservative originalists rarely employ historians or make claims upon a historian’s authority/expertise/perspective. This provides concrete evidence as to the predominantly “protestant” (non-expert-mediated) nature of contemporary conservative legal claims on historical meaning.

I will build out these initial findings this summer/fall. I will establish a comparable growth pattern/results for HBBs, analyze the CHABs’ discourse on originalism and with originalist briefs, and more fully describe the liberal dissenters’ critical uses of CHABs.