Politico Botches a Hit

H eidi Przybyla has a long piece in Politico claiming that many of the conservative amicus briefs in Supreme Court cases are “connected” to Leonard Leo and that these briefs have distorted the Court’s understanding of history. But what she uncovers is banal and what she alleges is false.

Start with her lead example. Przybyla mentions a brief in the Dobbs case by Princeton University professor of jurisprudence Robert P. George — co-authored by eminent legal philosopher John Finnis, who is bafflingly unmentioned. Justice Harry Blackmun’s opinion in Roe v. Wade had said that it was “doubtful” that the common law ever treated abortion as a crime even late in pregnancy. Finnis and George document at length that Blackmun got the history badly wrong, having been misled by the legal academic and abortion activist Cyril Means Jr. They cite, among others, Henry de Bracton to establish that abortion had been understood to be a crime back to the 13th century. Other briefs “echoed” the Finnis-George argument, Przybyla writes, and Justice Samuel Alito quoted the same passage from Bracton.

But, continues Przybyla, George “is not a historian,” organizations of historians “strongly disagree with him,” and it’s newsworthy that he got “this questionable assertion” into a Supreme Court opinion. Politico’s headline, “‘Plain historical falsehoods’: How amicus briefs bolstered Supreme Court conservatives,” snarkily deploys a quote from Finnis and George to discredit them.

There are a few problems with this story line.

First: It’s a stretch to attribute Alito’s citation of Bracton to the Finnis-George brief. In that section of the opinion, Alito was taking on Blackmun’s historical account. And Blackmun himself cited the same passage from Bracton. He treated Bracton as an outlier but acknowledged that his treatise was evidence that abortion had been treated as homicide. Of course Alito would mention it. The justice was not making a novel point that Leonard Leo arranged to bring into the conversation. He was saying something that Blackmun himself had conceded.

Second: George tells me that neither Leo nor any organizations affiliated with him funded any of the work on the brief, and he has never communicated with Leo about its contents. (And the main argument of the brief, that unborn children count as “persons” within the 14th Amendment, was not echoed by most conservative briefs in the case or by the eventual opinion.) This information seems more relevant than the links between George and Leo that Przybyla constructs, such as that both men “are avid wine collectors.”

Third: Finnis and George are right, and it requires no specialized historical training or credentials to see it. Przybyla cites a statement by two historical associations that — if you read it closely — doesn’t actually deny what Finnis and George said. It does not attempt to dispute that the common law ever treated abortion as a crime; it does not back up Blackmun’s assertion that it was “doubtful” that it did so even late in pregnancy. She also cites three medievalists who argue that Bracton referred to abortion as homicide only when the fetus is “formed and animated.” There’s an interesting story to be told about what he meant by that, but it doesn’t matter here: Alito explicitly noted Bracton’s “formed and animated” qualification. Nobody is disputing it. The medievalists are just firing up a smoke machine.

We have seen historians behaving badly in Supreme Court abortion cases before. Many well-credentialed historians submitted a brief for the pro-choice side in a 1989 case even though that brief contradicted the published work of some of the signatories and falsified sources on which it purported to rely. The law professor who organized that brief later admitted that it was “constructed to make an argumentative point rather than tell the truth.” It’s a history Przybyla does not mention, although it would seem to be relevant to her invocation of guild privilege to establish who has the history right.

She then moves on to pro-choice legal historian Mary Ziegler, who claims that “the case that abortion was a historical crime wasn’t part of the anti-abortion push” until the early 1980s, when it was introduced at an anti-abortion conference. (The legal historian to whom she attributes the introduction of that case describes himself as in favor of legal abortion early in pregnancy, by the way.) This is of course preposterous. Opponents of Roe began arguing that it erred on the history as early as 1973, the year it came down. And there’s a reason Blackmun felt a need to preemptively argue that abortion had historically been allowed and to cast doubt on sources such as Bracton who said otherwise.

Politico also treats us to a quick and innuendo-filled review of some other cases. In the Court’s recent affirmative-action case, Justice Clarence Thomas cited the Virginia Bill of Rights of 1776 to buttress the case that Founding-era statesmen believed that “all men are by nature equally free and independent, and have certain inherent rights.” We’re supposed to consider this suspicious because the same provision was mentioned in a brief from John Eastman, “best known as the accused mastermind of the legal strategy Trump used to try and overthrow the 2020 election.” Sorry, Virginia Bill of Rights: You had a good run for nearly 250 years, but now Eastman has made it off-limits to cite you.

In the rest of the piece, Przybyla demonstrates that conservative legal activists dominate the conservative legal network, that they make conservative arguments to the Supreme Court, and that the conservative justices are open to these arguments. I am not sure any investigation was needed to establish these points.

Given the nature of the Politico piece, I should note that while the National Review Institute has received grants from organizations affiliated with Leo, I have not spoken to him about any of this. Also, I am not a wine collector.