Photo by Phil Roeder (https://www.flickr.com/photos/tabor-roeder/5554035521), under a Creative Commons 2.0 license (creativecommons.org/licenses/by/2.0/).
Tomiko Brown-Nagin, Linda Gordon, Kenneth Mack
We asked three historians with intimate experience in the courtroom—Tomiko Brown-Nagin, Kenneth Mack, and Linda Gordon—to craft a short essay around the following four questions:
- What have been your main experiences in the courtroom? Do you have any formal legal training? Did you give expert testimony? Write legal briefs?
- What are the methodological differences between historical investigation (i.e. research for an article or a monograph), and preparing expert testimony or a legal brief? Do the two conflict in any way?
- What are some of the ethical difficulties posed by historians’ participation in the courtroom? Could potential problems arise when a historian is asked and paid to give expert testimony or write a brief?
- In general, how effective do you believe a historian’s testimony or expert opinion to be in the courtroom? How can we measure that effectiveness? Is it possible to assess whether the court relied on historians’ participation in their decisions?
What follows is a fascinating discussion about how the nuanced work of historians often times clashes with the more black and white nature of law.
Over the course of my career, I have filed several amicus briefs with the Supreme Court of the United States (SCOTUS) and have found the experience professionally challenging and rewarding. In Parents Involved v. Community Schools (2007), I submitted a brief to the court on behalf of historians of the civil rights era; by discussing the history of discrimination in education and housing in Louisville and Seattle, we hoped to undermine the line of demarcation that the Court draws between de jure and de facto segregation. Despite our efforts, SCOTUS found the policies in that case, designed to maintain racially integrated schools, unlawful. I also submitted a brief in Grutter v. Bollinger (2003), arguing in favor of University of Michigan’s law school affirmative action policy. SCOTUS upheld the policy. Finally, I worked on Fisher v. Texas I (2013). The brief that I submitted in Fisher on behalf of a public interest organization blended history and social science to argue in support of universities’ holistic use of affirmative action policies. SCOTUS returned the case to lower court, instructing it to subject the policy to strict scrutiny. After a return trip to SCOTUS, the policy withstood challenge.
These experiences forced me, a lawyer and a historian, to confront the significant differences between amicus advocacy and historical inquiry. A writer of an amicus brief is trying to persuade the court to adopt a certain interpretation of the law on behalf of a specific litigant. (See the examples above.) The judges who read these briefs or who consider expert testimony are trying to answer a particular legal question; the judges do not aspire to write an article for the Journal of American History. That is, when lawyers and judges invoke history, they do so without the professional norms that guide historians. Those norms include regard for nuance, the qualification of claims, and the consideration of contrary evidence. Thus, the legal approach to history is functional, whereas scholars engage in more abstract history.
Further, as a historian working in the courtroom, I’ve thought a lot about the certain ethical difficulties that can arise because of the differences between the legal and historical professions. Here are three examples: 1) when working as an expert witness hired by one litigant in an adversarial process, a historian might feel pressure to characterize her findings in a manner favorable to her side of the controversy; 2) when submitting an amicus brief for a cause, a historian might characterize her findings in a manner favorable to her side of the controversy; and 3) when working either as an expert or as an amicus briefer, a historian might realize that the evidence does not support her side of the controversy or her cause. In each of these cases, it is up to the historian to figure out how to or whether her participation in the legal process is consistent with the standards that guide the history profession. In my judgment, the vast majority of us (professional historians) would not participate in a legal process if it could not be reconciled with professional standards. We are just that beholden to the professional and cultural norms of our profession drilled into us from day one of graduate school.
If a professional historian does decide to participate in the legal process by offering expert testimony or writing an amicus brief, the effectiveness of a historian’s testimony may be difficult to gauge. Whether an experience is effective depends on how one defines effective—and there are many possibilities. If a judge reviews a historical work and finds it useful to decision making, the historian has achieved a certain effectiveness. If the judge goes one step further and cites the historian’s brief or testimony, she has been effective. But what if, as sometimes happens, a court cites a historian’s work in a manner inconsistent with the historian’s own interpretation of her evidence. Would that be effective? From the standpoint of an uninterested observer, probably yes. But in the context of an adversarial proceeding where the historian has chosen a side, probably no.
Charles Dickens wrote that “the law is a…idiot.” I’ve taken his idea entirely out of context of course—it was Mr. Bumble saying it in Oliver Twist—but the point is often on the mark. Law, as I have learned from lawyer friends, overlaps only partially with justice. It probably overlaps with historical evidence even less. This only increases my respect for the lawyers whose exceptionally hard work and above all creativity sought to bring together law and justice, law and history. With those two emphases—idiocy and creativity—I want to talk about three experiences I’ve had in the legal realm.
Because I wrote about birth control politics decades ago, I’ve contributed to several amicus briefs in abortion cases. My novice experience came at the request of Sylvia Law in Webster v. Reproductive Health Services (1989). She brought together a group of historians whose brief was ultimately signed by over 400 historians.
The law in question, a Missouri statute that we hoped to overturn, stated in a preamble that “the life of each human being begins at conception” and that “unborn children have protectable interests in life, health, and well-being.” The law prohibited, except when a woman’s life—not health or any other aspect of wellbeing—was in danger, government-employed doctors from aborting a fetus they believed viable, the use of state employees or facilities to perform or assist abortions, and the use of public funds, employees, or facilities to “encourage or counsel” a woman to have an abortion. The law derived from anti-abortion-rights campaigners’ fall-back strategy: having had no luck in overturning Roe v. Wade or passing a constitutional amendment, they sought to create as many obstacles as possible to exercising the right to abortion. Our amicus-writing group enjoyed a very temporary victory when a district court and a court of appeals struck down the law, but then the Supreme Court upheld it.
In working on this historians’ brief our group experienced difficulty translating historical into legal arguments and finding ways to bring historical evidence to bear on legal questions. Since our expertise qualified us to offer historical but not contemporary evidence, we focused on two arguments. First, that what was “traditional” in America was tolerance of abortion. (Between approximately 1840 and 1890, the states banned abortion for the first time; then in 1873 a federal law prohibited interstate transmission of any form of birth control and even abstract arguments for birth control.) And second, that the motives behind these state and federal prohibitions were discriminatory.
We emphasized three examples of these discriminatory motives. We pointed out that the campaign to ban abortion arose in part from physicians, newly organized into a professional organization, who sought to prohibit services that had traditionally been provided by lay women, notably midwives. Some of us also identified a racial motive behind the ban, i.e., fear that white dominance was threatened by the birth rate of populations of color and immigrants. (It bears noting that the “white” majority of Americans did not then classify Jews, Italians, Greeks, and other immigrants from eastern and southern Europe, let alone from the Middle East, as white.) Finally, we pointed to an explicitly gendered motive behind the anti-abortion campaign, namely anxiety that women were agitating to leave their appointed places as housewives and mothers.
But it wasn’t easy to make these arguments answer legal questions. Behind our emphasis on the traditionalness of abortion prior to its prohibition lay an assumption that we would have rejected in another context, i.e., that the “traditional” should be respected. We were forced into this focus on tradition, however, because anti-abortion-rights activists were demanding a return to “traditional” family values. But tradition does not always lead to good policy. Moreover, historians typically reject the very principle of precedent honored by courts; in fact our careers are often built on revising earlier conclusions.
Also problematic was what courts would consider as the authority supporting our evidence. We historians, of course, used primary sources as evidence of the traditionalness of abortion. The court, by contrast, deferred (if at all) not to primary sources but to the scholarship of “experts.” At this time, to the best of my knowledge, only one such “expert” existed: James Mohr’s 1978 Abortion in America. My own 1976 book discussed abortion only as part of an overall discussion of birth control politics, and for the rest of us evidence of abortion turned up in the context of other historical topics.
Another difficulty resulted from our reluctance to define the “traditional” status of abortion as an either/or, legal or illegal matter. Law is of course not the only form of social coercion. The absence of laws against abortion did not necessarily mean that all Americans thought it legitimate. Opinions about this differed, but most women probably saw abortion as regrettable, even sinful, but often necessary. Such a nuanced conclusion would not work in our brief.
Twenty-seven years later, in 2016 (and our amicus group in Webster could never have predicted that Americans would be still fighting about this) a smaller group—Nancy Cott, Linda Kerber, Alice Kessler-Harris, and I—came together to write an amicus brief in Whole Woman’s Health v. Hellerstedt (2016). Texas, following the same strategy as Missouri, had installed a series of regulations on abortion providers, requiring them to meet the same standards as ambulatory surgical centers; to upgrade their building, safety, parking, and staffing to meet the standards of a hospital; and to use only doctors with admitting privileges at a nearby hospital. These requirements, known as TRAP laws (Targeted Regulation of Abortion Providers), were not imposed on outpatient surgical clinics, whose procedures were far more dangerous than abortions. TRAP laws are justified as necessary to protect women’s health. We knew that medical experts would challenge the claims that these regulations were necessary for patients’ health. What we could challenge was Texas’s claim that these requirements served to protect women.
Working hurriedly, largely through email, we articulated the history of legislation that claimed to protect women, and the grounds on which courts had overturned it. We demonstrated that “protective” legislation was usually motivated by discriminatory assumptions about women and in its application both disadvantaged women and served to confirm their subordination. We cited laws that “shielded” women from the corrupting influence of politics by disfranchising them, “sheltered” them from hearing “sordid evidence” by keeping them off juries, “protected” them from dangerous work as, for example, pharmacists, but not as low-paid janitors. We pointed out contradictions—for example, that women were allowed to serve as waitresses in even the sleaziest bars, but not as bartenders. However, as we constructed our arguments, lawyers had to explain to us that some of our evidence of women’s subordination did not raise constitutional issues.
In ruling 5-3 for our side, the Supreme Court recognized that such laws were “rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” I cannot know whether our historical arguments had any influence, let alone decisive influence. There were hundreds of briefs on our side, and evidence from the present—that more dangerous facilities did not face these regulations, and that these regulations did not make abortion safer—was no doubt more persuasive than that from the past. Moreover, we had on our side a recent precedent against special treatment of women: Frontiero v. Richardson (1973) held that army wives could not be entitled to benefits that army husbands did not have. Still, the decision did refer to “paternalism,” so we might surmise that the court took some note of our evidence of the history of legal discrimination.
My worst experience with the law came from a case of race discrimination—in which, to my horror, I was cornered into supporting the discriminator. I participated here as a professor, not as an historian, and from the experience I learned a troubling lesson about academic confidentiality and privacy. An African American graduate student of mine tried to rent an apartment and was told that it was taken. Her husband, who was white, then went to look and had it offered to him. So they sued. The damages they claimed included the fact that the humiliating and stressful experience of discrimination had slowed my student’s progress toward a PhD. When the landlord’s lawyer subpoenaed my records regarding her, I was astonished to learn that I had to turn them over. The lawyer also deposed me. Between what my records showed and the questions put to me, I had to acknowledge that before the discriminatory incident my student was already progressing more slowly than was standard. My attempt to argue that the race discrimination contributed to her stress made no impact and my testimony and records were a factor in her losing the suit, to my great distress.
In case there are lawyers reading this, I plead that if you want to use historians, you need to instruct us as to what we can usefully offer. This may be a tall order for litigators who do not often have the leisure to proceed slowly. But I think many of us historians would be eager students if the effort could help bring law closer to justice.
At least since the time that C. Vann Woodward, John Hope Franklin, and Alfred Kelly helped the National Association for the Advancement of Colored People (NAACP) prepare its arguments in Brown v. Board of Education (1954), historians have participated prominently in the litigation process. I have had the somewhat unusual experience of being on both sides, so to speak, of the experience of a historian in court. As a relatively young lawyer (before I went to graduate school in history), I once supervised a professional historian who had been hired by my law firm to prepare an expert report for a trial. As a professional historian, I have signed several amicus briefs submitted by historians and professors to the United States Supreme Court. These were very different experiences.
In the trial where I participated as a lawyer, the main issue turned on which of two groups had historically controlled a particular geographical area—at least, as the issue of “control” was defined in the area of law that applied to the case. My firm had hired a professional historian who wrote and taught the history of this particular region of the United States, and he prepared a report documenting who settled where, who fished and hunted where, etc. over a period of perhaps a hundred years. I found his report somewhat more ambiguous than we would have liked. But, a senior lawyer told me that the first draft of his report had been even more ambiguous, and that we had encouraged him to make it less so. I helped coach him and prepare him for depositions and eventually to be examined at trial. At the time, I didn’t think his participation raised ethical issues, but as the years have passed I have become more and more skeptical about this initial belief. I think we found his report to be ambiguous because, as a historian, he simply did not think the issue of control, as defined in the legal doctrine, adequately described the history of this particular area.
This is an issue that has arisen many times when historians give expert testimony at trial. In federal court, at least, the rules of evidence allow experts to testify in the form of an “opinion or otherwise” if the “expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue” (Federal Rules of Evidence, Article VII, Rule 702). It all sounds very professional, but it’s still the case that experts are usually hired by a particular party to help that party win the case. Historians have been criticized for testifying for well-heeled tobacco companies and have been hailed for testifying for those harmed by lead paint and human rights violations. The French historian Henry Rousso famously refused to testify in the trials of accused World War II-era Nazi collaborators, in part because of the charged political atmosphere that surrounded them.
In the end, I think the historian that my law firm hired did what every historian in such a situation has to do—judge the particular context to see if one is comfortable defining the issue in the same manner as the legal doctrine defines it, and if one is comfortable coming to a conclusion that meshes with the desires of one of the parties to the litigation. In the end, a historian has to be in the business of applying professional historians’ methods rather than acting as a hired gun. In fact, the federal rules of evidence actually require it for the historian’s opinion to be admissible at trial.
It’s also true that lawyers have to be in the business of being lawyers, not historians. The more I think about it, the more certain I am that my own experience as a lawyer interacting with a historian came out, more or less, as it should have. The law rarely frames questions in ways that mesh seamlessly with professional historians’ standards, and there are good reasons for this. We just have to do the best we can with two ways of thinking about the history and precedent that usually talk past one another, and sometimes meet with an inevitable sense of mistranslation.
More recently, I have signed several amicus briefs in my capacity as a professional historian. In one particular Supreme Court case, Parents Involved in Community Schools v. Seattle School District No. 1 (2007), involving the constitutionality of school integration plans that took race into account, I signed a brief that was intended to educate the justices on the history of segregation and desegregation in Louisville and Seattle, the two school districts involved in the case. We failed miserably. This is the case where Chief Justice Roberts wrote that “history will be heard,” in concluding that the school assignment policies were unconstitutional. Roberts claimed that, in the pre-Brown v. Board of Education era, NAACP lawyer Robert L. Carter had asked for something like the “colorblind” approach to the Fourteenth Amendment that has been embraced by some conservative justices in more recent times. I promptly wrote an op-ed arguing that Carter and the other NAACP lawyers inhabited a very different historical context than our own and that his arguments and beliefs did not match up neatly with the positions of modern day lawyers and judges. I mailed it to the justices. I received several pro forma replies, although one justice was more forthcoming and did concede that perhaps I was correct.
In the end, I don’t think history mattered very much to the Court in that particular context. The justices were driven more by their prior beliefs and evolving philosophical positions on race relations. Our brief was nuanced, while the justices, I believe, wanted unambiguous support for their own positions. An amicus brief (unlike expert testimony) is not necessarily a piece of advocacy on behalf of one side in a case and thus can easily accommodate the kind of complexity that many professional historians value. Ironically, however, that same flexibility may have doomed our chances of having any significant effect on the decision.
Finally, on the question of effectiveness of historians’ participation, the evidence is murky. Expert testimony at trial might be easiest to assess. The expert is presumably brought on to testify on some core issue that the court must decide, although it still may be difficult to tell whether the expert contributed to the ultimate decision, or whether the trier of fact simply used the expert’s opinion in service of a decision that was made for other reasons.
The effectiveness of amicus briefs is more challenging to assess. In many, perhaps even most, cases, the Court may not cite or acknowledge the historians’ brief. How does one know if the judges or justices (or their clerks) even read it, or paid attention to it, or dismissed it out of hand? Even if the brief is cited, how does one know whether it contributed to the result? But then again, there are many definitions of effectiveness. A historian’s brief might be like any other piece of historical production. We write to communicate our professional knowledge to the world. Whether, and to what extent, the world actually listens is not entirely within our control.
Tomiko Brown-Nagin is the Daniel P.S. Paul Professor of Constitutional Law and Professor of History, Harvard University, and has a J.D. from Yale as well as a Ph.D. in history from Duke. Prior to entering academia, she worked in a prominent New York law firm in the litigation department for two years.
Linda Gordon is the University Professor of Humanities and History at NYU. Her most recent book is The Second Coming of the KKK: the Ku Klux Klan and the American Political Tradition (2017). She is also the author of Dorothea Lange (2009) and The Great Arizona Orphan Abduction (1999).
Kenneth W. Mack is the inaugural Lawrence D. Biele Professor of Law and Affiliate Professor of History at Harvard University. His 2012 book, Representing the Race: The Creation of the Civil Rights Lawyer was a Washington Post Best Book of the Year, a National Book Festival Selection, and was awarded honorable mention for the J. Willard Hurst Award by the Law and Society Association. He is also the co-editor of The New Black: What Has Changed—And What Has Not—With Race in America (2013).