Chief Justice Roberts Cites A Law Review Article (Not Written By Henry Friendly)

In light of the Chief Justice’s comment last year poking fun at the irrelevance of much legal scholarship to the work of the courts, I thought it worth noting this passage in the his dissent this morning in Miller v. Alabama:

In this case, there is little doubt about the direction of society’s evolution: For most of the 20th century, American sentencing practices emphasized rehabilitation of the offender and the availability of parole. But by the 1980’s, outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legislatures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes. See, e.g., Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1–13 (2003)[.]

I still hope to someday see a cite to The influence of Immanuel Kant on Evidentiary Approaches in 18th Century Bulgaria. But I suppose this will do for now.

UPDATE: Commenter Rob Luther reminds me that Roberts also cited an article a few months ago in his majority opinion in Hosanna-Tabor, specifically Michael McConnell’s article The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990). For those deeply into such citological questions, both articles were cited for a historical point.

ANOTHER UPDATE: Former Roberts clerk Will Baude notes that there are actually several more examples, including one from this year:

Filarsky v. Delia, 132 S. Ct. 1657, 1663 (2012) (Roberts, C.J.) (citing 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.); Beard v. Kindler, 130 S. Ct. 612, 618 (2009) (Roberts, C.J.) (citing Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L.Rev. 1128, 1140 (1986)); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009) (Roberts, C.J.) (citing Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L.Rev. 1710 (2004)); Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 62 (2009) (Roberts, C.J.) (citing Garrett, Claiming Innocence, 92 Minn. L. Rev 1629, 1719 (2008)); Sanchez-Llamas v. Oregon, 548 U.S. 331, 344 (2006) (Roberts, C.J.) (citing Bradley, Mapp Goes Abroad, 52 Case W. Res. L.Rev. 375, 399–400 (2001))

I had avoided blogging about the Chief’s comment on law review articles last year because it seemed blown way out of proportion, and these citations make me think that judgment was correct.