Chief Justice Robert's decision for the unanimous Court in in the law school/military recruiting case today gets the constitutional analysis just right in my opinion. (Full disclosure, I signed on to an amicus brief by a number of professors on the Harvard Law School Faculty that raised a statutory argument against the defense department's new policy of denying funds to schools that enforce thier nondiscrimination policies against the military as they do against any other employer that similarly discriminates. That brief itself raised concerns about the plainitffs constitutiinal argument, given its dangerous implications for the legality of civil rights law more generally. Needless to say, the Court rejected our statutory argument, but at least it did no evident damage vis a vis the legislative power to protect civil rights). But beyond the substance of the holding, I was struck by the fact that the 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.