'Plain historical falsehoods': How amicus briefs bolstered Supreme Court conservatives

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Hat tip, SCOTUSblog

WHAT WE'RE READING

The morning read for Monday, December 4

By Ellena Erskine
on Dec 4, 2023 at 9:24 am

The court will hear oral argument in Harrington v. Purdue Pharma L.P. this morning, the bankruptcy case of OxyContin maker Purdue. Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Monday morning read:

• How will the Supreme Court reshape US opioid epidemic relief? (John Kruzel, Reuters)
• ‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives (Heidi Przybyla, Politico)
• The Supreme Court Takes On Yet Another Made-Up Controversy (Conor Clarke, The Atlantic)
• Supreme Court Must Go the Distance in Moore to End Tax Confusion (Erik Jensen, Bloomberg Law)
• The Supreme Court’s Utter Disregard for Science Is Somehow About to Get Worse (Steve Kennedy, Slate)
Posted in Round-up

Recommended Citation: Ellena Erskine, The morning read for Monday, December 4, SCOTUSblog (Dec. 4, 2023, 9:24 AM), https://www.scotusblog.com/2023/12/the-morning-read-for-monday-december-4/

POLITICO INVESTIGATION

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

A POLITICO review indicates most conservative briefs in high-profile cases have links to a small cadre of activists aligned with Leonard Leo.

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 Federalist Society, where Leo is co-chair.

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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