From the Profession column of the November 2010 issue of Perspectives on History
Friends of the Court: A New Role for Historians
Michael Grossberg, November 2010
In 2002, Nancy Cott and I co-authored a historians’ brief in the Massachusetts same-sex marriage case, Goodridge v. Department of Public Health.1 In this article, I draw on that experience to discuss the growing participation of professional historians in legal cases. The development warrants comment and conversation because historians are carving out a crucial new role for themselves as direct contributors to debates about contested legal issues such as same-sex marriage.
Amicus Curiae Briefs
An amicus curiae or friend of the court brief is submitted by an expert who provides appellate judges with specialized information about the central issues in a case. These “friends of the court” primarily bolster the arguments of one party in a suit. Consequently, amicus briefs are not neutral presentations of information; they are written to seek a particular legal outcome.
At the start of the 20th century, amicus briefs were filed in about 10 percent of cases heard by the Supreme Court; by its end they appeared in 85 percent of the cases, including an 800 percent surge from 1964 to 1995. A similar, though less steep, rise occurred in the citation of amicus briefs by the justices. Both changes also occurred in state appellate courts like the Massachusetts Supreme Judicial Court that heard the Goodridge case.2
The transformation of amicus briefs from rare to commonplace, marginal to influential, occurred for a variety of reasons, including changing court rules. Struggles over legal expertise played a particularly significant role in propelling their expansion. Those struggles exposed significant questions about who should be listened to in legal debates.
An obvious answer is lawyers and judges. However, time and time again, Americans have refused to defer to legal professionals on critical public issues, most recently regarding school prayer, abortion, end-of-life decisions, and property rights. The 2008 passage of Proposition 8 overturning the California Supreme Court’s ruling authorizing same-sex marriage is a vivid example of that lack of deference; it is also a contemporary expression of the persistent reality that Americans have always considered the law too important to be left to lawyers. Instead, the law remains, in part, what Tocqueville called a vulgar tongue—a language of rights, aspirations, and power available to all Americans. The history of the United States is strewn with examples of people voicing opinions about the law and demanding that their voices be heard. Starting in the late 19th century, experts in fields from sociology to physiology began to join the chorus and judges started to listen to them.
The willingness of lawyers and judges to heed the advice of experts took a decisive turn in 1908, when the future Supreme Court Justice Louis Brandeis filed a brief in Muller v. Oregon. The case dealt with a statute that protected working women by regulating their working hours and conditions. Its constitutionality seemed uncertain because prevailing precedents limited the power of state governments to regulate the workplace. Brandeis challenged those precedents by filing a brief that mixed a short legal analysis with lengthy summaries of contemporary social science findings about the physical differences between women and men written by Josephine Goldmark, his sister-in-law and a Consumer League activist. Goldmark’s social science evidence, Brandeis contended successfully, proved that women workers needed special protections. Though not an amicus brief, the Brandeis Brief revealed an epistemological change occurring in legal argumentation. It helped spur the expanding use of social science research in appellate decision making and a broadening understanding of experts and expertise in the law.3
While popular resistance to judicial decisions raises persistent questions about the role of public opinion and activism in the law, the Brandeis Brief raises persistent questions about the role of expertise in judicial decisions. Some answers are evident in the Goodridge case. It elicited over 25 amicus briefs from a wide array of religious groups, political organizations on the right and left, professional associations, and legal officials. Each asserted not simply an opinion on the case, but an expert one, an informed one; each demanded to be heard by the judges, as did Cott and I.
Historians as Writers of Briefs
The Gay & Lesbian Advocates & Defenders (GLAD), which directed the Goodridge case, asked us to write a historians’ brief supporting their clients. GLAD turned to us because our work on the history of marriage law had been cited by both sides during the case’s initial skirmishes.
But I think GLAD turned to us for another reason as well. Starting in the 1980s professional historians began to file amicus briefs. Of course, historians had long been involved in litigation. They served as expert witnesses in cases ranging from employment discrimination to adoption to Native American land claims. And their scholarship had been cited time and again in appellate briefs and judicial opinions, as lawyers and judges, following the Brandeis Brief tradition, added professional historians to their roster of experts. Lawyers have also turned to historians for advice as they constructed their legal arguments. Perhaps the most notable example occurred when future Supreme Court Justice Thurgood Marshall enlisted historians John Hope Franklin and Alfred Kelley to help develop the NAACP’s legal strategy in Brown v. Board of Education (1954).
In 1989, New York University Law Professor Sylvia Law gathered a group of historians to file a brief in Webster v. Reproductive Health Services. Law and many others feared the case might result in a decision that weakened the abortion rights secured for women in Roe v. Wade (1973). In particular, they worried about claims that the 1973 decision overturned an anti-abortion historical tradition. The brief that Professor Law and the historians drafted argued that the experienced and written history of abortion regulation in America supported Roe and reproductive choice. Over 400 historians signed it.4
The Webster brief represented the first direct attempt by historians to influence the outcome of an appellate case through assertions of professional expertise. It had at least two major consequences. First, the brief created a new role for historians: since 1989 more and more historians have tried to influence judicial decisions by filing amicus briefs. Several groups of historians, for instance, have filed briefs in recent gun control cases.5 By most accounts, George Chauncey and nine colleagues drafted the most successful historians’ brief. When the Supreme Court struck down state sodomy laws in Lawrence v. Texas (2003), the majority cited the brief extensively. And unlike Webster, only the 10 historical experts signed the brief, which sharpened the distinction between advocacy as citizens and bearing expert witness as historians. Second, the Webster brief reignited persistent questions about historians as policy advocates that have riled the discipline since Charles Beard used his scholarship as a tool for reform. Some historians dismissed the Webster brief and those submitted after it as mere advocacy, not history. Put another way, since 1989 historians have joined sociologists, psychologists, physicians, and countless other social and behavioral scientists and humanist scholars in grappling with the issues of whether and how to use their expertise to influence appellate decisions.6
The Goodridge Case
GLAD wanted to counter historical claims used to defend the Massachusetts ban on same-sex marriages. The state argued that marriage had been a fundamentally unchanging institution in Massachusetts and, therefore, to allow same-sex unions would be a radical innovation sanctioned neither by the past nor by the actions of any other state. In support of that assertion, the state claimed that same-sex partners could not fulfill the procreation requirements that had always been basic to matrimony. The state also drew on deep-seated opposition to judicial lawmaking to argue that history dictated that only the legislature could make a radical change in marriage law.
Cott signed on first, and then I was asked. I agreed for several reasons.
I believed that the historical scholarship on marriage, women, race, and the family spoke directly to the issues in the Goodridge case. As a professional historian who has written about the legal history of marriage, I concluded that I had an obligation to use my expertise to explain why as well as an ethical responsibility to use my knowledge of marriage law in the past to help the judges unravel the complex issues facing them in the present. I also decided that since my work and that of other historians would be used in the case, I wanted to say that supporters of same-sex marriage had a better understanding of our scholarship than did their opponents. I did not want my work misrepresented and misapplied without my comment. Finally, I read the stories of the seven couples in the case. As we know so well, storytelling is a powerful analytical tool that humanizes complex issues. The Goodridge stories were tales of deeply committed partners being denied, because of their sexual orientation, the security, benefits, and responsibilities of marriage that I freely enjoyed. I could not walk away from a request to give their stories a new ending by helping to stop the discrimination against them.7
The Goodridge Brief
In drafting the brief, we followed what has become the customary method of this new form of historical writing: collaborative authorship. Nancy and I, GLAD lawyers, and members of the Boston law firm Goodwin Proctor who served as pro bono counsel, wrote the brief in a series of conference calls, e-mail exchanges, and draft reviews that stretched over several months. The lawyers deferred to our historical judgments in determining the substantive content of the brief and the primary arguments it would make.
In making those choices, we had to confront the difference between conventional history writing and writing a historical analysis designed to persuade judges. That meant addressing the fundamental tension that faces those in every discipline who draft amicus briefs: our opinion would only be persuasive if it relied on our expertise, but advocacy is often dismissed as an illegitimate or compromised expression of expertise. The increasing sophistication and distinctiveness of historians’ amicus briefs as a particular form of historical analysis since Webster guided our efforts, particularly the reliance on scholarly consensus as a foundation for claims about the meaning of the past in the legal present.
We argued that historical scholarship demonstrated unequivocally that marriage and marriage law had changed over time and thus the law could, and we asserted should, change again. Unlike the state, we contended that neither marriage nor its regulation had ever been static in Massachusetts. Quite the contrary, both had changed in fundamental ways, often at the direction of the courts. Our historical synthesis offered countless examples from the state’s history to support that basic claim: a fundamental redefinition of the rights and powers of married women; the abolition of bans on interracial marriage; the diminution of procreation as a fundamental objective of matrimony; and the steady growth in the legitimacy and accessibility of divorce culminating in one of the most radical family law policies ever enacted, the no-fault divorce. Our synthesis led us to assert: “Throughout the history of Massachusetts, marriage has been in a state of change. In the 17th, 18th, and 19th centuries, blacks were forbidden from marrying whites, and women lost their legal identity on their wedding day. Massachusetts courts and lawmakers remedied these injustices by reforming marriage laws, at times radically, to reflect contemporary views of racial and gender equality and fundamental fairness. That marriage remains a vital and relevant institution is a tribute to the law’s ability to accommodate changing values, not the rigid adherence to rules and practices of another time.” And we reiterated those points in our conclusion: “The history of marriage in Massachusetts shows that this Court has kept marriage relevant not by adhering to concepts from another era but by molding the institution to fit the times. The time to jettison this vestige of discrimination against same-sex couples by allowing these plaintiffs to formalize their commitments through marriage is now.”8
Our brief also applied a lesson from the Webster case. As I noted, over 400 historians signed that brief, which meant that most did so less on the basis of their expertise in the history of abortion law and more as a result of some combination of their understanding of the history of abortion and their own views on abortion law. Like the historians who wrote the Lawrence brief, we decided that our assertion of expertise based on scholarly consensus was best served by distinguishing between citizen advocacy and the advocacy of experts. We asked for an endorsement of the Goodridge brief only from historians who had written on the history of marriage and the law in the United States, particularly those cited in the brief. Thus its title: “Amici Curiae Brief of the Professors of the History of Marriage, Families, and the Law.”
Embracing a New Role
It is difficult to measure the impact of an amicus brief. Sometimes, as in Lawrence, a brief is cited directly. Sometimes points from briefs are incorporated without a direct citation; sometimes they are ignored completely. And, perhaps paradoxically, sometimes silence is a gauge of success; the determination of judges not to pursue particular arguments because briefs have rendered them moot.
History did not occupy much space in the Goodridge decision. The majority did assert that “alarms about the imminent erosion of the ‘natural’ order of marriage were sounded over the demise of anti-miscegenation laws, the expansion of the rights of women, and the introduction of no-fault divorce.” And yet, the judges concluded, “Marriage has survived all of these transformations, and we have no doubt that marriage will continue to be a vibrant and revered institution.”9
A historians’ brief has been filed in every subsequent same-sex marriage case except in California. All of these briefs have supported same-sex marriage and asserted the historiographical consensus that Cott and I presented in the Goodridge case. Though the rulings have been mixed, the briefs and the histories they bring into the present have become an integral part of the debate over same-sex marriage; only last winter Chauncey and Cott were called to testify in Perry v. Schwarzenegger, a lawsuit challenging the constitutionality of Proposition 8 that is now winding its way to the Supreme Court.10
Helping write the Goodridge brief left me with a new understanding of the role of historians as authors of amicus briefs. The experience convinced me that professional historians can, and should, intervene when the past is central to a particular case. It also reinforced my belief that historians’ briefs, like other forms of history for audiences beyond our peers, should be recognized as a distinctive kind of historical analysis and one that ought to be critiqued accordingly. They should not be dismissed as mere works of political opinion. Instead we should grapple with the important questions about the use of historical expertise in advocacy raised by this new and increasingly expected role for historians in the judicial process.
Michael Grossberg, a former editor of the American Historical Review, is professor of history and law at Indiana University. His publications include Governing the Hearth: Law and the Family in Nineteenth-Century America (Univ. of North Carolina Press, 1985). He wishes to thank Nancy Cott, Estelle Freedman, and Linda Kerber for their comments on earlier drafts of this essay. The essay is based on a presentation at a plenary session, “Marriage on Trial: Historians and Lawyers in Same-Sex Marriage Cases,” at the 2010 AHA annual meeting in San Diego.
1. For the decision in the case see Goodridge v. Dept. of Public Health, 440 Mass. 309; 798 N.E.2d 941 (Mass. 2003); for the historians’ brief see www.historians.org/Perspectives/issues/2010/1011/2002-11-08-goodridge-amicus-history.pdf.
2. For a general assessment of amicus briefs see Joseph D. Kearney and Thomas W. Merrill, “The Influence of Amicus Curiae Briefs on the Supreme Court,” University of Pennsylvania Law Review, 148 (2000), 743; Paul M. Collins Jr., “Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation,” Law & Society Review, 38 (2004).
5. District of Columbia v. Heller, 554 U.S. ___ (2008), for the briefs filed in the case see: www.scotuswiki.com/index.php?title=DC_v._Heller; McDonald, et al., v. City of Chicago (pending), for the briefs filed in the case see www.scotuswiki.com/index.php?title=McDonald_v._City_of_Chicago.
6. Lawrence v. Texas, 539 U.S. 558 (2003); for a copy of the brief see http://hnn.us/articles/1539.html. The other historians were: Nancy Cott, John D’Emilio, Estelle B. Freedman, Thomas C. Holt, John Howard, Lynn Hunt, Mark D. Jordan, Elizabeth Lapovsky Kennedy, and Linda Kerber. See also, Daniel Hurewitz, “Sexuality Scholarship as Foundation for Change: Lawrence v. Texas and the Impact of the Historians’ Brief,” Health and Human Rights, 7 (2004), 205–216. For a full discussion of the historians’ brief in the Webster case including comments by some of its authors and others who signed it like me, see “Roundtable: Historian and the Webster Case,” The Public Historian, 12 (Summer 1990), 9–75.
7. The briefs that GLAD filed in Goodridge can be found at: www.glad.org/work/cases/goodridge-et-al-v-dept-public-health.
10. The other state same-sex cases include Lewis v. Harris, 908 A.2d 196 (N.J. 2006); Andersen v. King County, 138 P.3d 963 (Wash. 2006); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A.2d 407 (2008); Varnum v. Brien, 763 N.W.2d 862, (Iowa 2009). For an initial assessment of the historians’ testimony in Perry v. Schwarzenegger see http://hnn.us/blogs/entries/122165.html; for transcripts of their testimony see http://firedoglake.com/prop8trial/. It is worth noting that in this case, the court ruled in favor of the plaintiff and declared that Proposition 8 was unconstitutional. That judgment has been stayed, however, by the Ninth Circuit Court of Appeals, pending an appeal. To read the decision see: https://ecf.cand.uscourts.gov/cand/09cv2292/.