This essay is part of “What Is Scholarship Today?”
My involvement with amicus briefs for the Supreme Court began 10 years ago, with a request to review a brief written by other historians on an issue I study. An amicus curiae is a “friend-of-the-court” brief composed by specialists who are not directly involved in a case but have the relevant expertise to help inform judges’ decisions. It may seem strange that my knowledge of 17th-, 18th-, and early 19th-century legal history is relevant to cases under review in a 21st-century courtroom, but “history and tradition” are increasingly invoked to both shape and overrule US law and policy. It turns out that knowledge of the past is central to many cases in the present. Historians thus find themselves in a strange and dangerous moment: Far from going unnoticed or ignored, the past is being selectively ransacked for ideological ends.

By submitting amicus briefs, historians can bring the latest research to the courts. Carol M. Highsmith/Library of Congress Prints and Photographs Division
The US Supreme Court (SCOTUS), circuit courts, and appeals courts at all levels of our judicial system run the grave risk of misrepresenting legal history, conjuring a past that never existed or relying on poorly understood principles and policies to reshape existing law. Their attempt brings to mind Sir Henry Spelman, an early 17th-century legal antiquary appointed by Charles I to write charters for the colonies based on his idealized understanding of medieval law and practice. Which is to say: Wielding the past to shape the future has a long history.
The first amicus I contributed was to Tuaua v. United States, a 2015 case concerning the question of whether children born to noncitizens in US territories could earn US citizenship. The others have ranged across a spectrum of issues connected to the legal history of the founding era, from the practice of gerrymandering in a democracy to the question of whether 18-year-olds have a constitutional right to purchase assault weapons. Is a man with a restraining order against him for attempting to shoot his girlfriend and mother of his child entitled to purchase another gun regardless? The answer to this question, articulated in United States v. Rahimi (2024), relied on an amicus I contributed to (along with 17 other historians and the law firm WilmerHale). It showed the parallels between judicial orders for sureties of the peace in the 1790s and today’s restraining orders, and was cited by the court in their final decision. I was proud to read that decision, which emphasized interventions that Laura F. Edwards and I had introduced into the brief.
Historical research is often key to oral arguments, as they were in Trump v. United States, the 2024 presidential immunity case. With the help of the Brennan Center for Justice and historian Rosemarie Zagarri (with whom I serve on the center’s historians’ council), I began drafting a brief even before SCOTUS accepted the case. I was alarmed by a pattern of recent decisions in which SCOTUS majorities cited case law from 17th-century England comparing the powers and prerogatives of presidents to those of prerevolutionary “chief executives under the common law” (i.e., kings). These cases include Seila Law LLC v. Consumer Financial Protection Bureau (2020), wherein SCOTUS ruled that a president could ignore federal law and fire an agency head without cause, essentially because James II once had that power.
Researching and crafting our amicus brief in the immunity case was a complex process that involved excavating relevant constitutional and ratifying debates as well as legal treatises from before and after the revolution. The issues raised in our brief were brought up frequently during oral argument. We targeted a key claim laid out by President Trump’s lawyers: “Chief executives” under the common law before the revolution had prerogatives that included immunity; because common law continued to be used after the revolution, they argued, presidents still had such prerogatives. In fact, common law guides published after the revolution, such as that by justice St. George Tucker in 1803, explicitly repudiated such claims. In their final decision, the SCOTUS majority not only ignored the conclusions of our brief; they also ignored the Constitution itself. But our brief was cited by the minority, who wrote powerfully about how the decision undermined constitutional norms of balanced power.
It is overwhelming to be involved in something so crucial. But such cases make clear how relevant history is. Moreover, they make clear that historians’ engagement is essential to a justice’s ability to make informed judgments. Historians’ work can help derail misinformed arguments and make other arguments more subtle. (It can also be frustrating when we cannot raise broader historical questions and must work within legal frameworks.) Writing such briefs is always a team effort, a true peer review process: A well-crafted brief is a thing of beauty. But we need more historians who are willing to do this work. The shape of the future depends at least partly on understanding the past, both its principles and its practices. Bringing our skills and knowledge to the table via amicus briefs not only broadens historical scholarship but helps safeguard our democracy.
Holly Brewer is Burke Professor of American History and associate professor at the University of Maryland.
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