The Chief Justice Reads Law Reviews

Several years ago, Chief Justice Roberts offered some thoughtful remarks on the substance of law review articles. Some have pointed to the Chief’s comments as evidence that law reviews are generally worthless. In the past, I’ve questioned that conclusion by noting that the justices regularly cite scholarly work. In this post, I approach this issue in a somewhat different way by showing that the Chief Justice himself regularly cites law review articles in his judicial opinions.

Here are the key remarks from the Chief Justice:

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.

If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.

Commentators have responded to these remarks in a number of ways. Some have agreed with the Chief Justice’s suggestion that scholars do and perhaps should pursue valuable goals other than being useful to judges. (The Chief seems to have had something like this in mind when he said: “that’s great.”) Others have pointed out that abstract research today can indirectly lead to practical doctrinal applications tomorrow, somewhat like the way that basic scientific research contributes to future innovations in applied science. And still others have suggested that “90% of everything is crap” (or carp), and we shouldn’t expect anything else of law reviews.

Instead of comprehensively addressing the law review debate, I just want to make a simple point: When considering the Chief Justice’s critique, it’s worth keeping in mind that the Chief Justice himself is in fact a consumer of law review articles and regularly cites them in his judicial opinions. (Orin Kerr collected several of these examples back in 2012.)

Here is a non-exhaustive list of examples taken from opinions that the Chief has authored during his tenure at the Supreme Court.

1. Sanchez-Llamas v. Oregon (2006)

  • Bradley, Mapp Goes Abroad, 52 Case W. Res. L.Rev. 375, 399–400 (2001)

2. Jones v. Bock (2007)

  • Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 533 (1947)

3. Baze v. Rees (2008)

  • Denno, Getting to Death: Are Executions Constitutional? 82 Iowa S 42L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution)
  • Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study)

4. Beard v. Kindler (2009)

  • See Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L.Rev. 1128, 1140 (1986) (‘‘[R]efusals to exercise discretion do not form an important independent category under the inadequate state ground doctrine’’)

5. Herring v. United States (2009)

  • Judge Friendly wrote that ‘‘[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice outlawing evidence obtained by flagrant or deliberate violation of rights.’’ The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L.Rev. 929, 953 (1965) (footnotes omitted)

6. District Attorney’s Office v. Osborne (2009)

  • Garrett, Claiming Innocence, 92 Minn. L. Rev 1629, 1719 (2008) (surveying state statutes)
  • Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 159, n. 87 (1970).

7. Northwest Austin Municipal District v. Holder (2009)

  • See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004)
  • Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 208 (2007) (“The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would … disrupt settled expectations”)

8. Miller v. Alabama (2012) (dissent)

  • Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1–13 (2003)

9. Filarsky v. Delia (2012)

  • Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 598–599, n. 121, 619
  • Sklansky, The Private Police, 46 UCLA L.Rev. 1165, 1210 (1999) (footnotes and internal quotation marks omitted)

10. Hosanna Tabor v. EEOC (2012)

  • McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L.Rev. 1409, 1422 (1990)

11. Kiobel v. Royal Dutch Petroleum (2013)

  • See Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 494 (1986).
  • See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587, 641–642 (2002)

12. Marek v. Lane (2013) (statement respecting denial of cert)

  • See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L.Rev. 617, 653–656 (2010)

13. City of Arlington, TX v. FCC (2013) (dissenting opinion)

  • Monaghan, Marbury and the Administrative State, 83 Colum. L.Rev. 1, 27-28 (1983) (“the court is not abdicating its constitutional duty to `say what the law is’ by deferring to agency interpretations of law: it is simply applying the law as `made’ by the authorized law-making entity”)
  • Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency
  • Sales & Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L.Rev. 1497, 1564 (2009) (“if delegation really is antecedent to deference, as Mead insists, it cannot be that courts should defer to an agency’s views on whether a delegation has taken place”).
  • See Merrill & Hickman, Chevron‘s Domain, 89 Geo. L.Rev. 833, 910 (2001).

14. Riley v. CA (2013)

  • See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403, 404-405 (2013)

15. McCullen v. Coakley (2014)

  • See Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L.Rev. 413, 451-452 (1996).

Many of these cites go to points of fact about the current or historical state of the law, while others make more analytical or argumentative points about how best to understand abstract legal issues. To be sure, some of the cites are to classic works that might transcend any critique of current law reviews. (Justice Frankfurter’s and Judge Friendly’s writings most clearly fit this bill.) But most of the listed examples are to works of a relatively recent vintage.

The listed cites likely understate the Chief’s interest in law reviews, since he presumably considers many materials that, for one reason or another, don’t actually end up appearing in his published opinions. And, to repeat, the above list is not exhaustive. Indeed, I may have overlooked some cites in the very opinions listed above. (Please feel free to add other examples in the comments.)

The fact that law review citations regularly appear in the Chief Justice’s judicial opinions casts the Chief’s famous critique of law reviews in a different light. Instead of taking the position that law reviews are generally irrelevant to the Court’s business, perhaps the Chief meant to convey that law reviews could or should be relevant to courts even more often than they currently are.

It’s also worth noting that the Chief often cites other scholarly sources, such as historical treatises written by scholars of previous generations. Those obviously aren’t what the Chief was talking about in his critical remarks, but it’s worth considering the possibility that a lot—not all—of today’s scholarship will be useful to later historians who want to know how those strange people of 2015 thought about things.

Also omitted from the above list are a number of cites to books written by legal scholars, such as the Chief Justice’s cite in Baze v. Rees to my colleague Stuart Banner’s book The Death Penalty: An American History. And the list of course also omits cites to scholars’ amicus briefs, wherein academics apply their scholarly work to particular cases. Those briefs often build on prior scholarly work while eliminating the need to cite the underlying work directly.

None of this resolves the debate about law reviews or proves that we live in the best of all law review worlds. (We don’t.) But it does seem notable that perhaps the most salient recent critique of law reviews came from a regular consumer of those very materials.

[UPDATE: I’ve added the Sales & Adler cite pointed out by a commenter. UPDATE2: I have now noticed and added the Merrill & Hickman cite.]

First posted on Prawfs.

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