Recalling my experience as Chair of the Board of Directors of the Historical Society of the United States Courts in the Eighth Circuit, and otherwise, here are a few quick thoughts about the importance of legal historians:
- With the exception of Judge Buzz Arnold, there are few if any legitimate legal historians in the federal judiciary. That is certainly true on the Supreme Court. Since originalism is all the rage, it is curious that the Supreme Court does not rely more upon true legal history scholars. This failure is nowhere more evident than in the Court’s current Sixth Amendment and sentencing jurisprudence. For example, the assertion that juries not judges were uniformly responsible for sentencing at the time of the Founding is flatly wrong as a historical matter. See Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Georgetown Law Review, 183, 196 n. 90 (2005) (stating that “in the late eighteenth century, . . . judges gained wide discretion to sentence defendants within broad ranges of years” and citing, as an example, An Act for the Punishment of Certain Crimes Against the United States, ch. 9, Stat. 112, 112-9 (1790) (creating thirteen crimes with sentencing ranges from up to one year to up to seven years’ imprisonment and one punishable by unlimited imprisonment and fines at the judge’s discretion, as well as six capital crimes)). It may not be a stretch to say that the whole of the Court’s sentencing jurisprudence as it regards fact-finding by judges is built upon a demonstrably incorrect reading of legal history. In short, 13 years (and counting) of chaos in the federal criminal justice system could have been avoided had the Court looked to real legal historians for help.
- Because the Justices are not real legal historians, they should not base their decisions on disputed or uncertain legal history unless they have input from true legal historians. The Justices should act affirmatively and regularly call upon recognized legal historians to submit amicus briefs when the Justices have reason to believe that the correct reading of disputed or unclear legal history may be crucial to the proper resolution of a case. For example, the American Society for Legal History (ASLH) might be induced to create a standing amicus committee that would provide the Court with an unbiased exposition of legal history if called upon by the Supreme Court to do so.
- Opinion-making news media such as the New York Times ought to solicit the input of legal historians on a regular basis when covering the Supreme Court. I have all that I will ever need from Linda Greenhouse. It would be far more enlightening to have reputable legal historians place the Court and its decisions in context. For example, there is much gnashing of teeth about the current Court and its alleged pro-business stance. It would be interesting then to have a real legal historian compare the Lochner era Court to this one.