Academic highlight: Telling stories in the Supreme Court – SCOTUSblog

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Among the welter of amicus briefs in Whole Woman’s Health v. Hellerstedt was a brief filed by 112 women lawyers. In it, these women told the world, many for the first time, that they have had an abortion. The brief marks their “coming out” to their professional world — a combative, masculine milieu where gender-based vulnerability can be the kiss of death.
But the brief is more than a public disclosure. These women spoke from inside the justices’ own rhetorical circle. As one of the brief’s authors explained, “It’s the Justices’ community—it’s their colleagues and people who have argued before them and former law school classmates and co-clerks.” For instance, a former clerk related her desperate situation after a contraception failure at a time when she “did not have the mental, emotional, or perhaps most importantly, economic resources to have a child.” A litigation partner at a large firm explained how her abortion as a teenager had allowed her to be the first in her family to graduate from high school, let alone become a lawyer. The overarching theme is that without reproductive choice, these women could not have participated fully in the same professional community in which the justices themselves have lived and thrived.
The brief is an example of a “voices brief,” the first new kind of appellate briefing since the iconic “Brandeis brief” in 1908. Voices briefs supplement an appellate record with stories drawn from the lives of strangers to the case. They are often told in the first person (e.g., “I had an abortion when I was a young lawyer, just out of law school and clerking for one of the best known and busiest federal trial judges in the country.”). Because the stories appear for the first time on appeal, they are subject to no evidentiary standards. They are offered instead as legislative (policy) facts, subject to no further testing than any other policy facts in an appellate brief.
Recent years have brought an explosion of voices briefs. Obergefell v. Hodges alone saw a total of 16 (more than 10 percent of the amicus filings in the case). And after the dust had settled in Whole Woman’s Health, 17 briefs had related stories of non-parties (more than 20 percent of that case’s amicus filings). Nor are voices briefs primarily a progressive strategy. In Obergefell and Whole Woman’s Health, voices briefs were roughly evenly submitted on both sides of the case. For deeply personal constitutional issues such as marriage equality and reproductive rights, voices briefs are now de rigueur.

Source: scotusblog