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.

More on Roberts and Legal Scholarship: Following up on yesterday's post about Chief Justice Roberts and legal authority, I did a quick check of the opinions John Roberts filed as a circuit court judge. I found a bunch of cases in which Roberts discussed or cited scholarly commentary. In every case, the commentary cited or discussed was a leading treatise.

  First, there was U.S. ex rel. Totten v. Bombardier Corp, 380 F.3d 488 (D.C. Cir. 2004), a case about the False Claims Act. In response to a reading of the Act offered by Judge Garland in dissent, Roberts wrote the following:

The proposition that subsection (a)(2) harkens back to (a)(1), and that the latter requires presentment, is supported in scholarly commentary on the False Claims Act. A leading treatise on the False Claims Act states that "[t]he three requirements of Section [3729](a)(1)" — including the requirement "that a claim be presented to the United States" — are "still applicable" to Section 3729(a)(2). 1 JOHN T. BOESE, CIVIL FALSE CLAIMS AND QUI TAM ACTIONS § 2.01[B], at 2-21 (2d ed. Supp. 2004-1). The dissent's contrary conclusion — that subsection (a)(2) does not require any presentment that may be required under subsection (a)(1) — has tellingly little support.

  Second, from Koszola v. F.D.I.C., 393 F.3d 1294 (D.C. Cir. 2005), a First Amendment case:

Nothing in the text of 5 U.S.C. § 1221, however, requires the district court to undertake the "clear and convincing" inquiry in terms of any particular legal "test," multi-factor or otherwise. "Clear and convincing evidence" is a common legal standard. See generally 9 WIGMORE ON EVIDENCE § 2498, at 424 (Chadbourn rev.1981) (standard of clear and convincing proof "commonly applied"); id. at 424-31 (cataloging instances in which standard is applied). Given the familiarity trial judges have with this standard, we do not think it grounds for reversal that the district court did not explicate its ruling according to a particular gloss.

Third, from In re Tennant, 359 F.3d 523 (D.C. Cir. 2004):

Mandamus jurisdiction over agency action lies, if anywhere, in the court that would have authority to review the agency's final decision. See FCC v. ITT World Communications, Inc., 466 U.S. 463, 468-69, 104 S.Ct. 1936, 1939, 80 L.Ed.2d 480 (1984); TRAC, 750 F.2d at 77-79; 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3942, at 796 & n.70 (1996).

  It's hard to make very much of this, of course. But assuming Roberts maintains the same practices on the Supreme Court, this evidence from his years on the D.C. Circuit makes it seem a bit less likely that Roberts will differ from the other Justices in his willingness to note or engage with scholarly commentary.

  UPDATE: I rewrote the post after finding a few more examples.