Why it’s a difficult task for historians to assist Supreme Court justices resolve today's legal questions

History plays a job within the U.S. Supreme Court, where most justices either adopt some type of interpretation or occasionally depend on it called “Originalism”, which states that the unique meaning of the Constitution must be determined and applied when deciding cases.

Historians also play a job within the Supreme Court today.

In recent years, the court has increasingly in controversial casesblended in with polarized electoral politics and overturned long-standing precedents, including the nationwide right to abortion.

This judicial aggressiveness, coupled with the commitment of most judges to originalism, has brought skilled historians into each judicial practice and the general public eye.

The reason for that is that lawyers, interest groups and think tanks seek the expertise of historians on the history of specific cases.

New opportunities are emerging for historians to take part in court proceedings, including the recently established Brennan Center for Justice Council of Historians on the Constitution And Consulting jobs for historians whose research intersects with controversial political issues similar to gun laws.

However, the brand new importance of historians also raises fundamental questions on the role of history and historians themselves in shaping the current.

If lawyers, activists, or politicians are aiming for a selected conclusion, does that expectation influence the way in which historians approach their research? How can historians meet the political demands of the current without oversimplifying their research or adapting their conclusions to current legal arguments—and thereby distorting their evaluation?

A large white building with eight columns in front of it.
This provides historians with latest opportunities to have interaction with issues before the U.S. Supreme Court.
lucky-photographer/iStock / Getty Images Plus

Seize the moment

As a Historian of nineteenth century US history and program manager in the Office of Public Scholarship and Engagement on the University of California, DavisI find the general public demand for historians' views on these issues fascinating and exciting.

However, this approach of doing history for money can complicate the incentives for historical inquiry.

For many years, historians have been writing amicus curiae briefs, also called “friend of the court” briefs, which advisory documents submitted to the court by third parties.

But this Court's emphasis on deciding cases by interpreting the unique meaning of the Constitution, including recent reference to the unique intent of the Second Amendment And Fourteenth Amendmenthas brought more historians out of obscurity – and the archives – to contribute publicly to the debates.

Some historians are receiving widespread media coverage, including Harvard scholar Jill Lepore and Yale scholar David Blight. They could possibly be in a Interview on NPR Highlighting their amicus curiae transient within the case difficult Donald Trump's eligibility to vote in Colorado because he participated in an rebellion, Lepore and Blight used their amicus curiae transient to handle the historical intent of Section 3 of the 14th Amendment.

Contributing to public debate is an element of the role of historians and arguably ensures the relevance of their field. The American Historical Association, the leading skilled organization for historians, offers Advocacy recommendations on the web site that provide strategies for engaging with public affairs.

But in the case of applying historical research methods to essential legal decisions, some historians feel that they’re venturing out of their field and into the less familiar area of ​​legal argumentation.

Complicating the story

Gregory Downs, Head of Department and Professor of History on the University of California, Davis, and recently on the Brennan Center Council of Historians on the Constitutionsays that it might sometimes seem that the methods utilized by historians aren’t in keeping with the methods and procedures of the court.

While historians contextualize history to raised understand the numerous differences between eras of the past, lawyers search for direct analogies between the past and present that may illuminate their case. This can result in oversimplification. As Downs puts it, “Any argument that draws a direct analogy between a present moment and 1866 is inherently unhistorical.”

Furthermore, historians approach historical questions without drawing a preconceived conclusion, whereas lawyers approach a case knowing that they support one side or the opposite.

The opportunities available to historians to contribute to those legal debates – amicus curiae briefs – already shape historians' arguments right into a set of answers to the legal questions of the case, slightly than allowing for open historical inquiry. While it is feasible for a scholar to file an amicus curiae transient in support of neither side of a case, historians in these cases are generally asked to offer historical support for under one side.

Downs says, “Amicus curiae briefs start from the premise that they support one side or the other… the court will ultimately have to make a decision.” In the Supreme Court, he says, “they either affirm or reverse a prior judgment, so it's a binary outcome, and that's why the briefs can lead to a binary outcome.”

This approach runs counter to historians' desire to spotlight the complexity of history. Historians find it difficult to scale back the numerous events and perspectives of history to at least one side or the opposite.

Did the Supreme Court ignore history and historians in a very important decision? Two historians think so.

Rather, historians' strengths lie in putting historical records into context, using historical events or people as a start line to inform a coherent story of the past. These stories can evolve, expand, or change as latest evidence and perspectives are uncovered and integrated into historical narratives.

The goal of historical research just isn’t to persuade a contemporary jury or judge of a selected, predetermined conclusion, but slightly to assemble evidence, examine different interpretations, and challenge unprovable accounts of the past.

Downs says: “The balancing act for historians is to get as close as possible to these complexities while at the same time figuring out whether the applicability – in our subjective judgment – is sufficient to write an essay that is still intended to be useful.”

“You could write a summary saying, 'Everything is very complicated,'” he says, “but then it's no use.”


The current majority of the Court holds that the unique intent of the Constitution should govern the answer of today's pressing legal questions.

Still Historians see not only an intention on this document, but many “intentions” that were expressed – and suppressed – throughout American society within the drafting of the Constitution and its amendments.

What intent is taken into account decisive is generally a political or legal query, not one which historians ask. The inherent complexity of history can undermine the seek for clear and unambiguous jurisprudence.

Moreover, in recent many years, historical scholarship has broadened its focus to incorporate voices which have traditionally been excluded from authoritative history books, including the voices of individuals of color and ladies, who were denied a say within the drafting of the Constitution. How should a court consider expanding historical perspectives?

Perhaps it’s for this reason difficulty find essentially the most appropriate historical perspective for a legal case that historical accounts are sometimes simply neglected by the Supreme Court.

This happened in Decision in March 2024 within the case that decided Trump's inclusion on the Colorado ballot.

Despite several amicus curiae briefs from historians who found historical evidence that Trump's removal from the Colorado ballot was justified under Section 3 of the 14th Amendment, the justices unanimously disagreed. make no reference to this historical contextThe story was largely ignored, in addition to the historians.

As originalism maintains its hold on the Supreme Court, historians will likely proceed to look for brand new ways to contribute to judicial decisions. Historians are attempting to seize this moment, but questions remain as as to whether their research can be considered useful within the adversarial environment of the courts and whether their analyses could have a meaningful impact on judicial decisions.

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