Procedural Oversight of Historical Amicus Briefs

Amicus curiae briefs have become a powerful and increasingly common feature of judicial decision making. Historically understood as neutral figures and “friends of the court,” modern amicus briefs frequently function as advocacy tools that interest groups, scholars, and organizations seeking to influence judicial decision-making use. In recent years, historical amicus briefs, or those presenting historical evidence or arguments, have particularly grown in number as courts increasingly use originalist theories of interpretation and adjudication. Despite their growing influence, historical amicus briefs operate with minimal procedural oversight. Unlike expert testimony introduced in trial courts that are subject to certain evidentiary safeguards, historical amicus briefs do not face meaningful scrutiny regarding methodology, expertise, or evidentiary reliability. This Note argues that the increasing reliance on historical amicus briefs presents an issue for courts. After examining the history and evolution of amicus practice and the methodological tensions between legal advocacy and historical scholarship, this Note evaluates potential reforms—including enhanced disclosure requirements, expert screening mechanisms, and Daubert-style evidentiary guardrails—to promote transparency, methodological integrity, and more reliable uses of history in judicial decision making.