“As the Supreme Court’s decisions increasingly turn on their understanding of the distant past, the number of supporting briefs from historians has exploded and their influence has grown,” according to Adam Liptak, who has published an article in The New York Times on historical advocacy in amicus briefs.

Historical advocacy takes many forms, but it is nice to see a news article focusing on one of the ways in which professional historians advocate on policy issues based on their historical expertise.

Liptak’s article examines the ways in which the extensive use of historical claims by lawyers and judges affiliated with the legal theory of “originalism” has led a rapid increase in amicus briefs by professional historians. Many professors of history and historical researchers have filed amicus briefs in Supreme Court cases, responding to blatant distortions of the historical record by lawyers and judges.

“Judge Jeffrey S. Sutton, a prominent federal appeals court judge, was already marveling at the beginnings of the phenomenon in a 2009 law review article, noting that ‘honest-to-goodness historians, as opposed to lawyer historians,’ had filed supporting briefs in major Supreme Court cases on the Second Amendment and efforts to combat terrorism,” according to Liptak.

“‘By my count (an admittedly rough count),’ [Sutton] wrote, ‘historians filed more amicus briefs in the last four years than they filed in the preceding seven decades combined.'”

“Since then, bona fide historians have filed scores of additional briefs, according to a recent study in The Journal of American Constitutional History. And those filings have been cited by the justices at a sharply higher rate than other sorts of supporting briefs, except for those filed by lawyers for the federal government.”

By “bona fide historians,” Liptak is referring to professors of history and professional public historians, such as historians who work at federal agencies, Smithsonian Institute museums, state institutions, historical museums, archives, and other institutions.

“‘With the rise of history-based arguments at the Supreme Court, we’ve had a rise in briefs filed by actual historians,’ said M. Henry Ishitani, who conducted the study. A recent graduate of Yale Law School, he is teaching legal history at the University of Tulsa College of Law while finishing his history dissertation at Yale.”

This form of historical advocacy especially involves constitutional historians and legal historians who work on the History of the United States. But, historians working on history of politics, democracy, civil rights, race, women, gender, sexuality, class, labor unions, economics, environment, science, medicine, civil-military relations, violence, international relations, warfare, and many other historical issues may also provide historical expertise on legal cases.

Historical advocacy can take on many forms beyond simply providing expertise in legal cases.

Professors of history and public historians have a civic duty to preserve archives, historical records, and public history. This is part of their broader mission to defend academic freedom, democratic institutions, constitutional law, and the common good.

It certainly seems that professional historians will be increasingly called on to conduct historical advocacy as a part of their core duties.

Liptak, Adam. “As the Supreme Court Focuses on the Past, Historians Turn to Advocacy.” The New York Times (4 August 2025).