The Volokh Conspiracy

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"As an author of one of these briefs, I am free to admit the lie."

The relationship between scholarly amicus briefs and scholarship


Last week the Harvard Law Review published its annual Supreme Court issue, which contains a Foreword by a leading constitutional law scholar on some of the major themes of the term, or the era generally. This year the Foreword was The Constitution of Anti-Colonialism, by Maggie Blackhawk, one of the most prominent scholars of Federal Indian Law in the academy. The piece contains a lot of important themes and interesting discussions, including the Supreme Court's decision last term in Brackeen v. Haaland, which concerned the constitutionality of the Indian Child Welfare Act.

While this is far from the most important thing in the Foreword, I was particularly struck by a passage Professor Blackhawk wrote about the briefing in Brackeen:

Rather than identifying the preservation of colonized communities as a constitutional value, the well-established constitutional discourse around "equal justice," crafted in the aftermath of human enslavement and Jim Crow segregation,67 drove the legal arguments of advocates and, in turn, framed the issues before the Court.68 Advocates defending the constitutional status of ICWA assumed a defensive crouch, arguing against constitutional relevance.69 They argued instead that Native children were uniquely not part of racialized communities,70 that removal was not rooted in racism,71 and that federal "plenary" power was, on average, beneficial to Native nations.72 As an author of one of these briefs,73 I am free to admit the lie. As I have written elsewhere, "racial hierarchies formed whatever heart imperialism has"74 and "national power was no panacea for the subordination of Native peoples."75 But, again, what other option are we left with when the United States does not seem able to even admit its status as empire,76 much less reckon with it as a problem of constitutional order?

67: Transcript of Oral Argument, supra note 47, at 95 (discussing the principle of "equal justice" in Palmore v. Sidoti).

68: For example, Matthew D. McGill, counsel for Chad Everet Brackeen and others, argued that ICWA "flouts the promise of equal justice under the law." Id. at 5.

69: See, e.g., Brief of Amici Curiae American Historical Association and Organization of American Historians in Support of Federal and Tribal Parties at 7-11, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378 & 21-380) [hereinafter Brief of Amici Curiae AHA and Organization of American Historians] (arguing that the federal government has long regulated Native families and children without constitutional issue).

70: Federal Appellants' En Banc Brief at 1, Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019) (No. 18-11479) ("ICWA's protections are triggered not by any individual's race but rather by the political fact of membership in a federally recognized tribe."); see also id. at 27-32 (arguing that the challenged provisions of ICWA draw upon political, not racial, classifications); Petition for a Writ of Certiorari at 12, 26, Brackeen, 143 S. Ct. 1609 (No. 21-376) (urging the Supreme Court to hold that "ICWA's Indian-based classifications are political, not racial, classifications").

71: See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 23-25 (describing the "fiscal concerns" underlying Native child removal in the mid-twentieth century, as opposed to the influence of "a long-standing federal policy of assimilation and racism," id. at 23).

72: See Transcript of Oral Argument, supra note 47, at 167 ("From the beginning, the … plenary power doctrine was used to protect Indians from non-Indians.").

73: See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 1-2.

74: Blackhawk, supra note 27, at 1861.

75: Id. at 1797-98.76: Id. at 1794 n.14 (citing Lisa Kahaleole Hall, Strategies of Erasure: U.S. Colonialism and Native Hawaiian Feminism, 60 AM. Q. 273, 275 (2008) ("The myth of a (mostly) empty North American continent waiting for (European) settlement and 'development' is foundational to the origin story of the United States as a 'nation of immigrants' developing an untamed wilderness. This continental origin story requires the denial of more than five hundred years of contrary facts beginning with the existence of millions of indigenous people inhabiting North America at the time of European contact and continuing through to the present with the struggles of more than 562 currently federally recognized tribal entities fighting to maintain their limited sovereignty and promised treaty rights in the context of complete public ignorance and complaints about their 'special rights."'); Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8 J. GENOCIDE RSCH. 387, 388 (2006) ("The logic of elimination … is an organizing principle of settler-colonial society rather than a one-off (and superseded) occurrence. The positive outcomes of the logic of elimination can include officially encouraged miscegenation, the breaking-down of native title into alienable individual freeholds, native citizenship, child abduction, religious conversion, resocialization in total institutions such as missions or boarding schools, and a whole range of cognate bicultural assimilations …. Settler colonialism destroys to replace." (footnotes omitted))) (surveying the literature on the erasure of colonialism).

What I find especially thought-provoking about the bolded passage above ("As an author of one of these briefs, I am free to admit the lie") is the tension it appears to raise between a law professor's role in authoring scholarship and his or her role in authoring amicus briefs. It appears to suggest that as amicus, a professor might make arguments that are likely to appeal to the court even if they are arguments that one would not make—and indeed would disavow—in one's scholarship. By contrast, others (most famously Professor Richard Fallon) have argued that scholarly amicus briefs should comply with the norms of scholarly integrity that apply to scholarship.

I would be curious to know what reactions others have to this tension.

[I would add that Professor Blackhawk's name does not actually appear on the scholarly amicus brief she references (except as a cited source), which was filed on behalf of the American Historical Association and the Organization of American Historians. But Professor Blackhawk describes herself as "[a]n author" of the brief in this passage, and has taken credit for it on her CV and elsewhere, so I take it that this incident does still raise the general question about the roles of scholarship and amicus brief.]