Today’s Brandeis Brief? The Fate of the Historians’ Brief Amidst the Rise of an Originalist Court

by M. Henry Ishitani

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Justice Sonia Sotomayor recently declared historical amicus briefs to be “the most important” form of amicus briefing for the current bench. Yet no study has yet attempted to empirically track the development and influence of history-based amicus briefing. This article begins to correct this gap in our understanding, starting first by defining the historians’ amicus brief subgenre of history-based briefing and analyzing its characteristics and influence with the Court as a complete population. The data reveals that historians’ briefs have received note-worthy judicial attention, with significantly higher overall citation rates than comparable forms of amicus briefing, including in numerous 5-4 cases. Historians’ briefs have repeatedly proven their use as both a facilitator of liberal coalition majorities and a tool of liberal dissents. They also provide historians with some means of securing their historical conclusions against the “historiographic ventriloquism” of manipulative judicial citation.

Yet historians’ briefs are not the only history-based briefing game in town. In particular, the emergence of an avowedly originalist Supreme Court has been met by an unprecedented flood of increasingly conservative originalist briefing, reinforcing a more than six-fold increase in originalism-framed Court opinions. Remarkably, and despite the successes of historians’ briefs, that conservative tide has remained almost entirely historian-less, as seemingly “protestant” conservatives rarely claim to write from the perspective or authority of a historian, even when the widest possible self-definition of that role is applied. Rather than washing away the influence of historians’ briefs, however, the rising originalist tide underscores the newfound importance of historiography at the Court, presenting historians and their legal allies with an opportunity to carve out an enduring Brandeisian relationship with the Justices. These findings should inform historians’ normative debate over their briefing involvement, spurring them to file more briefs and seek out informed legal allies as they consider how to most effectively encourage the Court toward a responsible and accurate understanding of the past.