Sherrilyn Ifill on What the Chief Justice Should Read on Summer Vacation

My colleague and CoOp guest blogger Professor Sherrilyn Ifill has written an insightful post responding to Chief Justice Roberts’s comments at the Fourth Circuit Judicial Conference.  I’m including her post below.  Thanks, Professor Ifill!

In response to a question at last weekend’s Fourth Circuit Judicial Conference in White Sulphur Springs, West Virginia, Chief Justice John Roberts expressed his agreement with the views of D.C. Circuit Court of Appeals judge Harry Edwards, who has long argued that the scholarship produced by today’s law professors is largely irrelevant to judges.  In fact the Chief Justice doubled down on Edwards’ argument that legal academics focus their scholarly attentions on matters that more concretely assist the judiciary and legal decisionmakers in understanding and working with difficult areas of law practice.  Roberts contended – jokingly albeit – that too often the average law review article will be focused on “the effect of Kant on the evidentiary rules of Bulgaria.”  The line got a laugh.  But it wasn’t very funny.  It also wasn’t very true.

Legal scholars will on occasion indeed take up Kant (and there’s no shame in that), but more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.  Such scholarship can assist judges in explaining complex legal doctrine, but also in working through the application of that doctrine to modern legal controversies. Take, for example, the work of my colleague Renee Hutchins, who in her 2007 article Tied Up in Knotts:  GPS Technology and the Fourth Amendment, 419 U.C.L.A. L.Rev. 409 writes about whether and how the use of GPS devices by law enforcement should be assessed under the Fourth Amendment.  Her article was so illuminating in exploring this underdeveloped area of law that Judge David Tatel on the D.C. Circuit Court of Appeals cited it in last year’s U.S. v. Maynard, in which the court unanimously held that the police use of GPS tracking on a criminal suspect over several weeks constitutes a “search” and requires a warrant.

Hutchins’ article is hardly an anomaly.  A recent review of articles posted on the Social Services Research Network, revealed a treasure trove of
excellent articles that would greatly assist judges in their work.

Let’s take a few examples.  As chair of the Judicial Conference, I would think that Justice Roberts would be very interested in Robert Burn‘s What Will We Lose if the Trial Vanishes, a serious and important meditation on the how the promotion of settlement,
alternative dispute resolution and summary judgment are killing the civil trial – which  Burns convincingly describes as “the crucible of democracy.”   After the Court’s decisions raising civil pleading standards in Bell Atlantic v. Twombly and Iqbal v. Ashcroft, Roberts may wish to consider Burn’s thesis. Or Brandon Garrett’s critique of the use of eyewitness identification in the courtroom in his Vanderbilt Law Review piece, Eyewitness and Exclusion.   Garrett’s article provides for the Court a window into how lower courts have approached the exclusion of eyewitness identification in the courtoom and demonstrates how these practices may circumvent the Supreme Court’s due process test in this area.  Still another scholar Matthew Hall recently offered a proposal in the U.C.L.A  law review for addressing the Court’s flawed policy for determining when to exercise jurisdiction over state court determinations of federal law.  And it’s not hard to imagine how Justice Roberts – who offered the now-famously simplistic bromide in 2006 in Parents Involved in Community Schools v. Seattle School District No.1 that “the way to stop discrimination on the basis of race is to stop discriminating based on race” —  would benefit from reading Jerry Kang and Kristin Lane’s recent review of the empirical data on the increasingly elusive but stubbornly persistent presence of racism in Seeing Through Colorblindness: Implicit Bias and the Law. These are just a few articles – – but there are scores of such articles published by legal academics every year that can hardly be regarded as obscure meditations on dead or irrelevant areas of law.  What’s missing is the willingness of some judges, apparently including our Chief Justice, to respect legal scholars as colleagues and collaborators who, along with members of the judicial branch, practitioners, and leaders in the profession’s organizations and associations, shape the development of legal doctrine and standards.

Indeed just a month ago, I remarked to a colleague that if Roberts were to read my 2002 article Do Appearances Matter?:  Supreme
Court Recusal Practice in Bush v. Gore, he would find a detailed prescription of how Supreme Court recusal practice should be reformed and codified – an area of Supreme Court practice desperately in need of reform and a matter much in the news these days in light of some of the activities of Justice Clarence Thomas and his wife, Ginni.

I suppose it’s always good fun to disparage members of the academy as pampered and isolated egoists.  Many of us are.  You could sense a certain relish when Justice Roberts drove the knife in further and offered that if asked to name the last law review article he’s read, he would be hard-pressed to remember even one. No doubt the Chief Justice meant to shame academics with what he regards as our own scholarly irrelevance.  But the shame is really on the Chief Justice of the United States, who demonstrated how out of touch he is with the current world of legal scholarship and the potential contribution of legal scholars to the work of judges.

There’s no question that legal academics enjoy tremendous latitude in writing about what interests them – regardless of whether anyone else in the profession is interested. But more often than not, law scholars today are deeply engaged with helping legal decisionmakers grapple with difficult legal issues.  Our scholarship – if read – can be very helpful to judges and their clerks as they navigate the shoals of complex legal
decisionmaking.

It may be futile, but I’m still hoping that Justice Roberts will spend even a little time this summer engaging the work of scholars who have spent countless hours engaged in research and thinking, in the hopes that the judges who interpret and determine the law, will at least deign to read our work.