‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives - POLITICO

The personal computer so facilitated the preparation, filing, and production of legal briefs that it transformed the practice of law before the United States Supreme Court - ultimately unleashing rafts of advocacy briefs financed by a network of non-profits, many of  which have close connections to the man who is likely the most influential lawyer in the country today - Leonard Leo.

When Brown v. Board of Education of Topeka Kansas, et al was first argued  in 1952 the United States Supreme Curt had these briefs to consider:

Briefs prior to initial oral argument::

Jurisdictional Statement

Brief for Appellants

Appendix to Brief for Appellants: The Effects of

Segregation and the Consequences of Desegregation–A Social Science Statement

Brief for Appellees

Brief for the United States as Amicus Curiae

Brief of American Civil Liberties Union et al. as Amici Curiae

Brief of American Federation of Teachers as Amicus Curiae

Brief of American Jewish Congress as Amicus Curiae

Brief of American Veterans Committee, Inc. as Amicus Curiae

Brief of Congress of Industrial Organizations as Amicus Curiae

Forty years later in the landmark scientific opinion testimony case Daubert v. Merrell Dow Pharmaceuticals  (1993) in which I participated, there were eighteen.  Several were independent (e.g.the Carnegie Foundation) But the pro-plaintiff briefs were coordinated by the plaintiff-oriented Association of Trial Lawyers of America (now known as AAJ).  Dow responded to each amicus brief with a rebuttal by comparably qualified amici.

But today even a consequential case like Jarkesy v. Securities and Exchange Commission (SEC) which demands a trial by jury, not trial before an Administrative Law Judge drew almost three dozen such briefs.

Politico's Heidi Przybyla tells the story of the web woven by right wing lawyers like Leo who has built a network unmatched on the political left.

- George Conk

‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives - POLITICO

By HEIDI PRZYBYLA

12/03/2023 07:00 AM EST

Princeton Professor Robert P. George, a leader of the conservative legal movement and confidant of the judicial activist and Donald Trump ally Leonard Leo, made the case for overturning Roe v. Wade in an amicus brief a year before the Supreme Court issued its watershed ruling.

Roe, George claimed, had been decided based on “plain historical falsehoods.” For instance, for centuries dating to English common law, he asserted, abortion has been considered a crime or “a kind of inchoate felony for felony-murder purposes.”

The  argument was echoed in dozens of amicus briefs supporting Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case that struck down the constitutional right to abortion in 2022. Seven months before the decision, the argument was featured in an article on the web page of the conservative legal network, the 

In his majority opinion, Justice Samuel Alito used the same quote from Henry de Bracton, the medieval English jurist, that George cited in his amicus brief to help demonstrate that “English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime.”

George, however, is not a historian. Major organizations representing historians strongly disagree with him.  That this questionable assertion is now enshrined in the court’s ruling is “a flawed and troubling precedent,” the Organization of American Historians, which represents 6,000 history scholars and experts, and the American Historical Association, the largest membership association of professional historians in the world, said in a statement. It is also a prime example of how a tight circle of conservative legal activists have built a highly effective thought chamber around the court’s conservative flank over the past decade.

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