An Empirical Assessment of the Supreme Court's Use of Legal Scholarship

ABSTRACT-Derogating legal scholarship has become something of a sport for leading figures in the federal judiciary. Perhaps the chief antagonist in recent years has been the Chief Justice of the U.S. Supreme Court, John G. Roberts, Jr., whose most recent salvo includes the claim that because law review articles are not of interest to the bench, he has trouble remembering the last law review article he read. This claim, and others by the Chief Justice, may represent the end of an uneasy detente concerning the topic of the utility of legal scholarship to the bench and bar. At a minimum, Chief Justice Roberts's recent comments represent an invitation to a discussion, which this Article accepts. To that discussion we contribute an empirical study that is based on an original and unprecedented body of data derived from every Supreme Court decision over the last sixty-one years. This study makes two major contributions. The first is evidence describing the amount and patterns of the Supreme Court's use of legal scholarship over the last sixty-one years. The second, and perhaps most striking, contribution of this Article is empirical evidence on the nature and quality of the Court's use of scholarship. This Article provides the first report, as far as we can determine, of evidence that the Court not only often uses legal scholarship, it also disproportionately uses scholarship when cases are either more important or more difficult to decide. It thus presents results that contradict claims that scholarship is useless or irrelevant to judges and practitioners. INTRODUCTION In May 2011, the New York Times reported that Chief Justice John G. Roberts, Jr. stated, "What the academy is doing, as far as I can tell . . . is largely of no use or interest to people who actually practice law."1 About a month after that, in June 2011, Chief Justice Roberts claimed that because law review articles are not of interest to the bench or the bar, he has trouble remembering the last law review article he read.2 The Chief Justice has also contended that legal scholarship is not "particularly helpful for practitioners and judges."3 To be fair, Chief Justice Roberts is not the first judge to claim that legal scholarship is useless or irrelevant. In the past, other judges have been similarly dismissive,4 as have some legal academics5 and representatives of the bar.6 But that debate7 had reached something of a stasis-a detente, if an uneasy one-well before Chief Justice Roberts arrived on the scene as a critic. By repeatedly going on the record criticizing legal scholarship, the Chief Justice might be attempting to unsettle the detente that has developed around the topic of the utility of legal scholarship to the bench and bar. At a minimum, it seems he has a desire to engage others in a discussion of the utility of legal scholarship. This Article contributes to that discussion an empirical analysis of an unprecedented body of original data concerning the use of legal scholarship in every Supreme Court decision in the last sixty-one years. It offers a number of novel observations and makes two major contributions. The first contribution describes the amount and patterns of use of legal scholarship by the Court: 1. Over the last sixty-one years, the Supreme Court has used legal scholarship in 32.21% of its decisions. 2. The Supreme Court, on average, uses more than one work of legal scholarship per decision. 3. The overall trend during the last sixty-one years has been an increase in the use of legal scholarship by the Supreme Court. The second contribution concerns the nature and quality of the Court's use of scholarship-that is, how the Court uses scholarship. We find evidence that the Court disproportionately uses scholarship when cases are either more important or more difficult to decide as defined by several criteria. In particular, we present evidence that there are strongly significant predictive relationships between the use of scholarship by the Court and: 1. …