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Chief Justice Roberts and Legal Authority:
Over at LawCulture, David Barron has a very interesting post on the first opinions by Chief Justice Roberts:
I was struck by the fact that the [Solomon Amendment] opinion cities solely to prior supreme court opinions, statutes, and regulations. No references to law review literature, treaties, casebooks, or anything else not written by one of the three branches themselves. That got me to thinking: perhaps it's not just foreign law that the new conservative judicial philosophy thinks is illegitimate; it's everything that's not an autoritative statement of a constitutionally recognized branch of govenrment. And that got me to looking. Thus far, the new chief has written two other opinions for the court. One finds the same citation pattern in each. Now that could just be a consequence of the kinds of opinions he's decided thus far. None, for example, has called for much delving into constitutional history. And, to be sure, it's only been three opinions. But still, I have my suspicions that this citation practice is intentional. if so, is it an attractive one or is it troubling? On the one hand, it has a kind of no nonsense quality about it — a just the facts ma'm style fully in accord with the new conservative judicial pose on display at the last two confirmation hearings. On the other hand, it might also suggest a vision of constitutional decision making that is awfully cramped and technical, in which the only guideposts are past cases, and statutory and regulatory texts stripped of their context, animating purposes or ideas. Lost in this approach is any sense of the broader legal culture that produces authoritative legal statements or the way in which such statements in turn shape the culture. It is statecraft by hornbook. It's too early to tell of course, whether there is anything to this "pattern." But it's worth watching — and challenging if it develops into an actual theory of constitutional decision making.
  As David suggests, we don't have enough evidence to see a trend. Relatively few Supreme Court opinions cite authority outside the relevant statutory text and prior Supreme Court opinions, so it's hard to know from two opinions if Roberts has a style different from the other Justices.

  However, if Roberts proves unusually disinclined to cite casebooks, articles, and treatises, he will be following the example of his former boss, William Rehnquist. Rehnquist saw a very sharp line between legal authority and mere commentary, and he didn't cite the latter as if it were the former. I wouldn't be surprised if Roberts has the same view.

  One interesting piece of evidence is a comment Roberts made in July 1997, during an appearance on the the Newshour that reviewed the October Term 1996. In discussing a recent case on the scope of Congressional power, Georgetown law prof Susan Bloch lamented that no one on the Rehnquist Court had discussed a theory that was popular in academic circles. Roberts added that this wasn't a bad thing:
SUSAN BLOCH: For example, when we were talking about the Freedom--the Restoration of Freedom Act, the--there was the theory that Justice Brennan had that the court--that Congress could enlarge the scope of constitutional protections and couldn't constrict it? And that had a--when we teach constitutional law that's--that was a valid theory. On this court, no one, not even the dissenters, even talked about or embraced that theory, so that a number of theories that were in play when Justices Brennan and Marshall were on the court aren't even mentioned anymore.

MARGARET WARNER: How do you see it, John Roberts?

JOHN ROBERTS: Well, I think it's a moderate court but one that is very serious about the limits it sees in the Constitution, whether it's the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it's a court that doesn't seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that's a serious flaw.

Related Posts (on one page):

  1. More on Roberts and Legal Scholarship:
  2. Chief Justice Roberts and Legal Authority:
Anthony (mail) (www):
A commentator on PrawfsBlawg has pointed out that Roberts has actually cited a law review article in one of his SCOTUS opinions.
3.7.2006 7:38pm
WB:

perhaps it's not just foreign law that the new conservative judicial philosophy thinks is illegitimate; it's everything that's not an autoritative statement of a constitutionally recognized branch of government. And that got me to looking. Thus far, the new chief has written two other opinions for the court. One finds the same citation pattern in each. Now that could just be a consequence of the kinds of opinions he's decided thus far. None, for example, has called for much delving into constitutional history. And, to be sure, it's only been three opinions. But still, I have my suspicions that this citation practice is intentional. if so, is it an attractive one or is it troubling?


When law professors get "concerned" about judges not citing law review articles, I question their objectivity. If a law review article or a book has really good explanatory power on an obscure principle, or if the court struggles to find a solution and is "shown the path" to a decision by a particularly good law review article, then it should "show its work" and credit the law review article.

When citation to secondary authority goes much beyond these situations, it takes on the air of "padding" and looks like a judge is trying to hide the fact that he's no longer interpreting the law by noting that a few lawyers have said similar things. An entire page with no citations looks less like "law" than a page littered with law review citations, but that doesn't mean that it's any more or less so.



Dissents and concurrences are a different story altogether.
3.7.2006 7:41pm
WB:

Lost in this approach is any sense of the broader legal culture that produces authoritative legal statements or the way in which such statements in turn shape the culture. It is statecraft by hornbook.


This quote is particularly troubling. The Supreme Court isn't in the business of "statecraft," as much as some would like it to be. The idea that "legal culture... produces authoritative legal statements" is also hardly uncontroversial. "Legal culture" produces all kinds of things, not all of which are desirable.
3.7.2006 7:44pm
canadianllb (mail):
Or is this just law professors upset that they'll no longer have Supreme Court approval to boast about?
3.7.2006 7:45pm
WB:
Finally, I'll note that it's not such a bad thing that Justices Brennan and Marshall took a few of their legal theories with them to the grave.
3.7.2006 7:46pm
dk35 (mail):
WB:

Can you explain why you think that dissents and concurrences are "another matter?" I mean, if a Justice can not rely on the relevant statutes and supreme court opinions to disagree with, or present a different analytical justification for their agreement with, the majority, then why shouldn't they feel compelled to join the majority's opinion?
3.7.2006 7:51pm
JB:
This post and the previous one make an amusing juxtaposition.
3.7.2006 7:53pm
Anonymous1L:
I think the issue here is that law professors, who have lots of time to try to divine theories, patterns and doctrines in Supreme Court jurisprudence, are a little miffed to find the court is not bound to give their ruminations any legal authority.

So naturally, when consulted for some article on how Roberts is doing, a few may say this pattern in "alarming" and a stripped of "animating purposes or ideas." Guess what? The court gets to say just what exactly is an "animating purpose or idea," you don't.
3.7.2006 7:54pm
nateinky:
I'll just point out that all three opinions have been unanimous with no concurrences. Anybody think that this stripped down style is conducive to reducing concurrences/dissents?
3.7.2006 8:11pm
Pete Freans (mail):
Hell hath no fury like a law professor scorned. How much weight does Mr. Barron suggest a justice give to a law review article or a casebook? I am by no means a constitutional scholar, but I think I would be hard pressed to find a decision which turned on a law review article or a casebook. I have always considered them as secondary source materials, but heck, what do I know...
3.7.2006 8:55pm
WB:
Concurrences and dissents are another matter, in my opinion, because they don't speak for the whole court. When a judge writes a separate opinion, there's no mandate attached to it,
so it's not "the law" so much as it's someone's opinion that didn't get enough agreement to be "the law."

This might be a screwy understanding of separate opinions, but I'll say at least that my point w/r/t majority opinions is less strong when it comes to separate opinions.

Maybe I read too many flamboyant dissenting opinions, but by and large judges seem to feel that certain things are more appropriate to put in dissenting opinions than majority opinions, like (1) nastiness and explicit anger, (2) a pile of law review articles agreeing with you, to make up for the fact that your colleagues don't and perhaps to carry the tone of "in a few years I'll be saying I told you so," and (3) a discussion of the possible consequences of the majority opinion.

(#3 also applies to concurring opinions)
3.7.2006 9:03pm
WB:
so... to answer dk35's question more directly, maybe judges should follow the same practice in separate opinions that CJ Roberts seems to follow in majority opinions, but I'm less sure of that than I am in the correctness of CJ Roberts' approach to majority ops.
3.7.2006 9:05pm
Cornellian (mail):
Well this little episode makes me like him more, though I'm not quite ready to forgive him for his vote in the Oregon assisted suicide case.
3.7.2006 9:09pm
laurence rothenberg (mail):
There's actually an interesting parallel to international legal culture. Article 38 of the statute of the Permanent International Court of Justice--the League of Nations' precursor to the current International Court of Justice--lists its sources of law as the following: International conventions, whether general or particular, establishing rules expressly recognized by the contesting States; International custom, as evidence of a general practice accepted as law; The general principles of law recognized by civilized nations; Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (ARticle 59 provides that the court's decisions are non-precedental and binding only on the parties). The statute was adopted by the International Court of Justice, and Article 38 is still considered an authoritative enunciation of sources of int'l law.

Two problems have developed since the statute and its list were first promulgated, however. First, int'l lawyers, legal scholars, and activists (who are often the same people) act as if the phrase "as subsidiary means for the determination of rules of law" doesn't apply. They act as if their own opinions are in fact Law, and if those contradict treaties and custom, than treaties and custom are wrong. Alternatively, they claim that something is customary int'l law because a professor says so, not because states believe so and act accordingly. Second, they have ignored the caveat that only the writings of "the most highly qualified" experts should be consulted. Today, anyone can get an article published in one of the myriad second-, third-, and fourth-rate int'l law journals and be cited for propositions of int'l law.

In fact, the entire idea that publicists can be cited is a only relic of the early days of int'l law when authors such as Grotius, Vattel, and Puffendorf were in fact accepted as authorities. It's a little different to cite to a professor at the University of Tubingen.

And as a matter of fact, the favorite case of int'l lawyers in the US throws cold water on the notion. They typically cite the Paquete Habana, 175 U.S. 677 (1900) for proposition that US courts must apply international law. But the Court was very careful in what it actually stated:

"International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of eivilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." (emphasis added)

Today it is sadly--but also comically--part of the international legal culture to accord the opinions of law professors as to "what the law ought to be" equal weight with actions by sovereign states in negotiating, signing, and ratifying (or declining to sign or ratify) treaties and with their actions creating (or objecting to the creation of) CIL.

I hope that the Roberts Court can turn things around in our national legal culture. It will take a much greater effort to do so in the international legal culture.
3.7.2006 9:54pm
JLR (mail):
It is key to note how Chief Justice Roberts (in his majority opinion in Rumsfeld v. FAIR) silently but elegantly corrected a jurisprudential error that had existed in the line of cases regarding symbolic speech.

As I have written in other threads, It is my contention that Justice Brennan's majority opinion in Texas v. Johnson empirically misunderstood and misused the O'Brien test.

Justice Brennan in Texas v. Johnson found the case to be "outside of" the O'Brien four-prong test because Texas's interest in banning flag burning was unrelated to the interest in suppressing free expression.

The third prong of O'Brien explicitly states that a given piece of legislation is constitutional "if the governmental interest is unrelated to the suppression of free expression." U.S. v. O'Brien, 391 US 367, at 377. The Texas v. Johnson ruling by Justice Brennan thus materially misrepresents the four-prong test set forth in the majority opinion in O'Brien by Chief Justice Warren.

The third prong of the O'Brien test cannot also be "outside of" the O'Brien test.

Chief Justice Roberts in Rumsfeld v. FAIR appears to have silently and elegantly corrected Justice Brennan's jurisprudential error.

Chief Justice Roberts thus seems to be making a concerted effort to ensure continuity and congruence within the case law.

The fact that Chief Justice Roberts has restored (with grace and aplomb) a lost piece of logic back into the symbolic speech jurisprudence is, in my opinion, a sign of good things to come for the Roberts Court.
3.7.2006 10:05pm
JLR (mail):
Btw, in the first sentence in my above post (3.7.06 10:05 pm) I should obviously have written "unanimous opinion for the Court." I apologize for the imprecision.
3.7.2006 10:08pm
Kovarsky (mail):
I think people are connecting two distinct ideas that should be kept separate.

First, the proposition that the court shouldn't jump on board vogueish legal theories,

Second, that citation to authority beyond the three branches should not be used.

I think the second is a consequence of the first, but I don't think Roberts views this as an indpendent bar on sourcing itself. There is a huge division between people that think "supplemental" meterials are fair game for consideration because they trump text and people that think supplemental materials are fair game because they tell you what ambiguous text means.

I don't think roberts would hesitate to look at primary source history as indicia of statutory meaning if it were unclear - i do think he avoid using a legal theory article to make his case.

Another factor involves the issues he's writing on. In Martin v. Franklin, both parties framed the issue almost entirely in terms of 1447(c) fees legal precedent.

In Gonzales v. .... Vegetal, the main issue was whether there was a sufficient likelihood shown (for injunctive purposes) for success on the merits on a RFRA claim for burdening free exercise (showing of a compelling state interest).

First, all of these opinions were, i believe, unanimous. Where there's a unanimous opinion it's generally because the authority is clear. There's no reason to take a reach for authority when you've got all the votes already. And if you've got all the votes, it probably means that the traditional sources of authority are more than sufficient.

Second, look at the the issues in these cases - except for FAIR (which was an 8-0), they're about: (1) whether certain removal requirements on the face of a petition are met pursuant to a statute; (2) whether a sufficient showing of likely success is shown to merit an injunction under RFRA.

Except for Dale, i mean FAIR, there's no real indication there are grand theories or comprehensive works of historical significance to cite. And in FAIR you have a holding that this is not speech (hardly controversial), that this is regulable conduct with an expressive component (straightforward application of O'brien), and freedom of association (maybe here there was some room for law review articles, but what's the point if you have an 8-0 on the issue).

So, a couple of conclusions. First, only with the expressive association in FAIR would you likely find any academically significant work. Second, citing to legal "theories" is not so much a cut against academia, so much as it reflects the fact that such theories are by their nature open ended, which cuts against the minimalist current on the court. Third, you see these "theories" pop up a lot more in cases about stare decisis, cruel and unusual punishment, equal protection, voting rights, substantive due process, etc. He hasn't written anything in those areas so its impossible to know whether he'll use extra-branch citing in those areas once he confronts them.

So I don't think this is really a statistically significant sample and, even if it were, I don't think it reflects the hostility to academia that people are milking it for.
3.7.2006 10:08pm
Willard:
Given the immense political gulf between the legal academy and the American people (I mean, as evidenced by the results of recent elections), it would certainly be contrary to any conceivable interpretation of democracy for the courts to pay any attention to anything the legal academy says.
3.7.2006 10:09pm
Kendall:
Willard - As much as I think its a good thing that Roberts is proving to be a very adherent to limitting what he bases his opinion on, why should the abstract notion of democracy even be mentioned in regard to the SCOTUS? The courts are not and should not be bound and subject to the will and whim of the people, they're an independant body for that very reason.
3.7.2006 10:26pm
Charlie (Colorado) (mail):
I have to admit my first thought was "and this is bad why?"

Glad to see I'm in good company.
3.7.2006 10:45pm
Lev:
Did he have pages of string citations?
3.7.2006 11:35pm
Robert Schwartz (mail):
"No references to law review literature, treaties, casebooks, or anything else not written by one of the three branches themselves."

Welcome to the ranks of the ignored, dude.

It is a nation of laws, not a nation of law professors.

I can just hear him saying Barron saying to himself:

"Oh, this is just terrible. A Supreme Court that is bound by the limits of the Constitution, the statues of Congress and its own precedent. This is a national disaster, how will they ever be able to raise taxes, socialize property, or make gay marriage manditory."

It would be funny, if it were not so clueless and pathetic. Is Barron always like that?
3.8.2006 1:05am
Kovarsky (mail):
Robert -

Is Barron always like what - the expressly fictional caricature you just created? No, he's not.
3.8.2006 1:48am
Wickedpinto (mail):
Heaven forbid a constitutional body only show respect for other constitutional bodies when making decisions about the constitution.

If you bitch about not being a part of a constitutional body, run for office, or get nominated.
3.8.2006 2:05am
HLSbertarian (mail):
"'Oh, this is just terrible. A Supreme Court that is bound by the limits of the Constitution, the statues of Congress and its own precedent. This is a national disaster, how will they ever be able to raise taxes, socialize property, or make gay marriage manditory.'

It would be funny, if it were not so clueless and pathetic. Is Barron always like that?"

The short answer is no. Keep this reverse-Kos-style crap to yourself. I don't agree with Prof. Barron, but making an interesting observation and suggesting a theory of jurisprudence that isn't to your liking doesn't make the man a totalitarian Commie.
3.8.2006 2:40am
Davod (mail):
HL:

I would suggest that it is the height of arrogance for Barron to be upset that the Robert's court is not looking to academics, or law review articles, for guidance.

Read the article before you get upset with what other writers post. It is perfectly legitimate to infer certain things from the article based upon what is written. After all, is not that what Mr. baron spends a lot of his time doing.
3.8.2006 4:23am
Medis:
It always seems to me that the most appropriate way for something like a law review article to influence a court decision is for it to suggest arguments that the parties could use in their briefs and oral arguments. Then, to the extent those arguments end up being persuasive, the article may have influenced the outcome of the case. Whether or not the parties or the court cites the article in question is mostly a matter of ego--or perhaps self-promotion--for the author.

In that sense, I think Barron is indeed misconstruing the issue. I think it is appropriate for the Court to focus primarily on the facts of the case and the arguments before the Court, with less concern about "shaping the culture" in some broader sense (although obviously the consequences of legal rules for future cases is a valid consideration). But a relatively "narrow" focus in that sense--a relatively tight focus on the case and arguments actually before the Court--does not imply that the decisions must be "cramped and technical", ignore "context, animating purposes or ideas", exercise only "hornbook" law, or so on.

In short, I think it is fine for professors to think broad thoughts about the law, culture, and so on. But they should understand that the primary role of judges is to decide cases and controversies, not shape the world as they see fit.
3.8.2006 5:08am
Kovarsky (mail):
I want to narrow the focus of my earlier post - I don't think the failure to cite law review articles has to do with a hostility to "liberal academia." I think it has more to do with a mismatch in the scope of those articles - broad and theoretical - and the Roberts era (yeah, I said Roberts era) judicial mandate - cautious and narrow.
3.8.2006 5:43am
MDJD2B (mail):
Today it is sadly--but also comically--part of the international legal culture to accord the opinions of law professors as to "what the law ought to be" equal weight with actions by sovereign states in negotiating, signing, and ratifying (or declining to sign or ratify) treaties and with their actions creating (or objecting to the creation of) CIL.

It's my understanding that courts in civil law countries acknowledge statutory law as paramount, deemphasize or negate the importance of case law, statutory law, and give greater credence than common law countries to the persuasive authority of academic scholarship. So the international legal community would give greater respect to academic opinions than we do as a matter of tradition and good procedure in legal decision-making
3.8.2006 8:05am
Daniel San:
"statecraft by hornbook"

Nope. He hasn't cited any hornbooks.
3.8.2006 10:00am
Houston Lawyer:
The more I read about Roberts, the more I like. The man has wit and style and keeps his eye on the ball. I foresee future dueling between Roberts and Scalia over who can draft the pithiest putdown of an overreaching argument.

A man who doesn't like citing law review articles will hardly cite foreign law. More please.
3.8.2006 10:19am
Brian G (mail) (www):
Just look at the FAIR v. Rumsfeld decision and the argument proffered by the law professors to see exactly why no one is listening to them.

The more I get to know Chief Justice Roberts, the more thankful I am that he was nominated. One can argue about many of Bush's decisions from now until doomsday. One can't really argue with his decision to nominate this fine man and fine judge to his position.
3.8.2006 11:17am
Hoosier:
I think I'm developing a "man-crush" on Roberts.

Full disclosure, since this site is becoming, on-and-off, a bit more partisan: I am Republican, moderately conservative. I have not voted for Bush, and I am tremendously frustrated with this administration, especially in the area of international relations. (Con Law is just a hobby. I know: I'm odd.)

But I will give Bush credit for this appointment. Roberts struck me during his hearings as exactly what conservatives have *said* that we wanted: Not an ideological innovator, or natural law purist. But a practicioner of judical humility. "Originalism" and "strict construction" are impossible, and attempts at achieving such a jurisprudence are not "conservative." (See, e.g., Thomas.) But "restraint" and lack of innovation is what mossbacks like me have hoped for since Harlan II departed.

Bush has gotten only a couple big things right (Afghanistan was the other, imho). So I'll give him credit on this one.

And then I'll campaign for Rudy in '08.
3.8.2006 11:59am
Kovarsky (mail):
Although he doesn't cite international law, he does get some thoroughly diverse international input. Out of his five clerks, one is Serbian and on is from Zimbabwe. Both brilliant and wonderful people.
3.8.2006 12:05pm
Medis:
I'm actually looking forward to the first time Scalia writes a dissent to a Roberts opinion. That should be interesting.
3.8.2006 12:44pm
Kovarsky (mail):
Well, if Roe is revisted, I think you'll get the chance. :)
3.8.2006 12:57pm
TDPerkins (mail):
David Barron, quoted above, wrote:

"On the other hand, it might also suggest a vision of constitutional decision making that is awfully cramped and technical, in which the only guideposts are past cases, and statutory and regulatory texts stripped of their context, animating purposes or ideas."

There is nothing about context, animating purpose, or ideas which could justify an unconstitutional law being anything other than null and void.

Yours, TDP, ml, msl, &pfpp
3.8.2006 2:52pm
Kovarsky (mail):
TDPerkins,

I don't think Barron is arguing that those atextual sources should trump plain meaning or save otherwise unconstitutional law. I take him to be saying that sometimes academic articles have real contributions to clarifying what a statute does mean, rather than what it should mean (this is a false dichotomy in any serious epistemic sense, but that's not for here). Take for example Caleb Nelson's in the HLR article a few years ago on sovereign immunity - it's a brilliant piece of historical scholarship that goes a long way towards clarifying what sovereign immunity means where. It is itself rooted partially in case law.

Or take for example the (I forget the authors) article in the Stanford Law Review last year about what constitutes dicta. The Supreme court has a woefully unsophisticated approach to that question, and could surely benefit from a more rigorous framework, even if they never have to cite it or apply it directly to contravene a statute.
3.8.2006 3:53pm
Robert Schwartz (mail):
OOh. I hit a nerve. Don't worry. The pain will wear off after a while. try putting some ice on it.
3.8.2006 5:19pm
Lev:

On the other hand, it might also suggest a vision of constitutional decision making that is awfully cramped and technical, in which the only guideposts are past cases, and statutory and regulatory texts stripped of their context, animating purposes or ideas. Lost in this approach is any sense of the broader legal culture that produces authoritative legal statements or the way in which such statements in turn shape the culture.


1. How does Barron know that Roberts et al. do not refer to The Holy Law Reviews in discussing the cases and drafting their opinions? Since when is a law review article Holy Scriptural Authority, especially to the Supreme Court?

2. What is the relevance of "the broader legal culture" and its then current fads and hysterias, to interpreting the Constitution?
3.8.2006 11:52pm