Late Thoughts on the Barron/Roberts Debate

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David Barron’s provocative post on Chief Justice Roberts’ citation practices attracted a great deal of attention this week. Barron argued that the Chief’s opinions to date have not cited any academic commentary, noting that “it’s worth watching — and challenging if it develops into an actual theory of constitutional decision making.” Steve Bainbridge retorted here: “[h]ow frustrating it must be for a con law scholar to face the prospect of decades of having the Chief Justice of the United States ignore you.” But, as Ethan Leib pointed out, law professors are used to a silent reception. (Tom Smith might agree.) A commentator to Ethan’s post noted that in fact the Chief did cite an article in his opinion in Martin v. Franklin Capital Corp., 126 S. Ct. 704, 710 (U.S. 2005). Rounding out the debate, Orin Kerr unearthed some previous opinions by Roberts citing treatises (cold comfort to young profs) and suggested such work made it “a bit less likely that Roberts will differ from the other Justices in his willingness to note or engage with scholarly commentary.”

There are a few balls in the air here. First, there is a predictive question: “Do the Chief Justice’s three opinions to date provide a sufficiently large data set to say anything about his citation practices in the future, and, if so, what?” Second, there is a descriptive question: “What is the current practice of the Court with respect to citing secondary authority, and how has that practice changed over time?” Finally, there is a normative question: “Is citation to secondary authority a metric that we should use to evaluate the strength of an opinion by the Supreme Court? Does it matter the type of case?” And, despite being a few days late, I’ve a few tentative thoughts on what is going on.


From the commentary, the normative question seems to resolving in a partisan way, although why this should be is unclear to me.

Perhaps conservatives assume that most scholarly work is the product of the liberal academy. Progressive law professors and Justices are said to corrupt/seduce conservative Justices – better to ignore them entirely. But I see modern conservative constitutional law’s dominant methodological approach as a kind of historical linguistics. If that is right, wouldn’t conservatives want good secondary work to inform the court’s deliberations, rather than the Court’s own amateur inquiries? And, having informed the Court’s decision, wouldn’t it be better (more open, democratically legitimate, and defensible) for the court to cite whatever sources it relied upon? Finally, what about the claim of Justice Aharon Barak of the Israel Supreme Court that refusal to cite to secondary authority and other aids to interpretation results in more, and not less, discretion.

Progressives, on the other hand, want the court to cite more sources (international law being a prime example, but presumably the latest issue of the Yale Law Journal as well). I suppose that the relevant folks flip the conservative position(s): non-textual authority is likely to be more progressively oriented on some topics; the modern progressive approach to constitutional interpretation relies heavily on scholarship establishing the contours of a robust EP and DP substantive right and not on the text itself; when you control none of the Three Branches, relying on their product to further progressive ends is itself questionable. But, of course, relying too much on scholarship instead of text exposes the court to popular legitimacy problems, and to a very large extent, the Court’s legitimacy is all that the some on the left thinks stands between it and the full workings out of the conservative counter-revolution. And the Court’s current importance to the left is contingent: if Al Gore or John Kerry had won, presumably worries about the Court’s hegemonic mid-90s rhetoric would still be popular.

In any event, this particular debate seems impoverished without a clear answer to the descriptive question. Robert Berring has written an article on that topic which I think is fantastic. He compared Supreme Court decisions a century apart. Berring describes the first set of opinions, from 1899, as follows:

What sources were cited? The Court relied heavily on cases. Just as the text of the cases is shorter and less convoluted, the number of cases cited is smaller. But the staple of authority was judicial reports. Cases from its own jurisprudence, cases from the various states, cases from England–all were at the center of the Court’s work. Reading through the volume one finds a solid reliance on precedent.

By contrast, Alden v. Maine, from 1999,

is a wonderland of sources beyond the bounds of cases and statutes. Hundreds of cases are cited, but so are authorities from all corners of the information galaxy. Justice Kennedy delves into the Federalist Papers and Elliot’s Debates on the Constitution and quickly moves to Charles Warren’s The Supreme Court In United States History and David Currie’s The Constitution in Congress: The Federalist Period 1789-1801.

Go ahead and read the paper. But more generally, there is a whole literature (some of which is found in the law librarian law review, and which appears to have been sparked in part by Wise and Schauer’s “Legal Positivism as Legal Information”) about the relationship between electronic access to law and it’s primary content (i.e., how do opinions look different after Westlaw went live). A basic finding: as the information available to the Court has increased, so has Justices’ citation to outside work (academic and otherwise). This relationship between access and citation practice undercuts the claim that citation to academic work is a phenomena of the left.

I should say that I understand why there is sensitivity about what the Court cites. Everything the Court does is of great moment from the perspective of a scholar of constitutional law. From my securities/corporate perch, I imagine with some glee that somewhere right now there toils a research assistant reading last term’s oral arguments, trying to code for a correlation between numbers of syllables used by Justices sitting to the respondent’s left, the result of the case, and the Justice’s appointing president’s daughter’s boyfriend’s name. Constitutional professors. Sheesh.

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3 Responses

  1. “Finally, what about the claim of Justice Aharon Barak of the Israel Supreme Court that refusal to cite to secondary authority and other aids to interpretation results in more, and not less, discretion.”

    You mean the same Justice Aharon Barak once quoted as saying the judge

    “must sometime depart the confines of his legal system and channel into it fundamental values not yet found in it”

    That Justice Aharon Barak?

  2. anon says:

    A hundred years ago, the justices relied on academic work too, it’s just that the influence was less transparent.

    The justices depend on the lawyers appearing before the Court to marshal the relevant authorities. The practicing bar didn’t cite law review articles a hundred years ago because law reviews were brand new and sparsely populated at that time.

    That doesn’t mean that the legal academy was ignored. Professors produced treatises that were very influential. The justices didn’t just go out and find all those English and state cases Berring mentions. The lawyers appearing before the Court brought them to the Court’s attention. Those lawyers in turn found those authorities from the leading treatises of the day.

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