Example 10.1
Takeaway point 10.1: Show that history condones your clients’ actions or supports their other arguments.
History is a battlefield. Lawyers need to learn to frame or reframe the past favorably and to counter an adversary’s use of history.
The next two examples come from opposite sides of the same prominent case. In it, a gay man was arrested for violating Texas’s anti-sodomy law. He challenged the law, and the case eventually required the Supreme Court to assess whether the Constitution protects same-sex intimate relations. In the first excerpt from this case, which appears below, Texas emphasizes the history of anti-sodomy laws.Source: Brief for Texas defending the state’s anti-sodomy law, from Lawrence v. Texas, 539 U.S. 558 (2003).
This subheading emphasizes the theme of “rooted[ness]” — a concept drawn from the Court’s prior opinion in Bowers, which was the linchpin of Texas’s argument. Pay attention to how the lawyers repeat and play off of this word throughout the subsection.
Notice that this entire subsection, which is one extended historical argument, presents no original research. Rather, it repeatedly cites Bowers to suggest that history supports Texas’s legal position. Referring to precedential history comforts lawyers and judges alike given how few of them have formal training as historians. As seen later in the chapter, original historical research can also influence judges.
In Chapter 5, we saw lawyers distinguish and downplay the other side’s authorities. Here, the lawyers use the same technique with history. They concede a handful of bad facts so that they can frame these facts in a way that serves their own argument. The phrase “in appropriate exercise of the democratic process” slips in a policy argument: that legislatures, not courts, should repeal anti-sodomy statutes.
This sentence captures the common technique of concluding that history, either wholly or on balance, favors your client rather than the other party.
Texas drives home its theme by repeating the words “history,” “trend,” “rooted,” and “tradition.” These words do a lot of heavy lifting for Texas, which is trying to depict the petitioners’ evidence as a trend and its own position as the one rooted in history. The passage here ends with a powerful, elegant metaphor.