Chief Justice Roberts and Legal Authority:
Over at LawCulture, David Barron has a very interesting post on the first opinions by Chief Justice Roberts:
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:
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):
- More on Roberts and Legal Scholarship:
- Chief Justice Roberts and Legal Authority:
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.
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.
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?
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.
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)
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.
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.
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.
Glad to see I'm in good company.
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?
Is Barron always like what - the expressly fictional caricature you just created? No, he's not.
If you bitch about not being a part of a constitutional body, run for office, or get nominated.
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.
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.
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.
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
Nope. He hasn't cited any hornbooks.
A man who doesn't like citing law review articles will hardly cite foreign law. More please.
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.
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.
"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
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.
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?