It's Not Just Foreign Law They Don't Like . . .

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.

Comments

[Snowball007]

To my eyes he appears to be emulating, perhaps intentionally, the late Chief Justice.

Rehnquist was (in)famous for admonishing counsel at oral argument to provide cases to support their positions--and only cases from the Supreme Court seemed to count. He didn't have much use for law reviews and the like either. See his opinion for the Court in Seminole Tribe, 517 U.S. 44, 68 (1996):

"The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans (other than Union Gas) that supports its view of state sovereign immunity, instead relying upon the now discredited decision in Chisholm v. Georgia, 2 Dall. 419 (1793)."

Of course, just because a justice doesn't *cite* law review articles or amicus briefs doesn't me he or she ignores them. Those sources of authority may have influence, but it won't be as transparent.

[Thom]

I don't intend to sound too flip, but is it surprising that the court didn't rely upon outside sources such as law review articles, treatises and such, when the "scholars" who produce those materials were, in essence, the same people who were so clearly wrong on the constitutional and statutory issues in this case? Is there a reason why the court should rely upon politics disguised as scholarship?

The direction of legal scholarship has veered so far from what is helpful to courts that it is no wonder that it is ignored by actual decision-makers.

[Simon]

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.I would suggest that this miscategorizes treaties; although none are cited in FAIR (why would any be?), I would suggest that ratified treaties would (or at least, should) very definitely fall into the same category as the other members of the "okay by Roberts" crowd (prior supreme court opinions, statutes, and regulations). Treaties are negotiated by the executive branch, approved by one part of the legislative branch, and are part of the supreme law of the land.

Moreover, I find it pretty hard to agree with the statement that "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"; the problem with foreign laws and precedents isn't just (or even primarily) its lack of a democratic foundation. If that were the principle problem with it, then that would indeed rule out law review articles from citation, yet Justices Scalia and Thomas, the two members of the court least amenable to importing foreign precedent, have at least semi-often cited law review articles in their opinions. It just seems far too early to be making predictions about our Fearless Leader's methodology on so limited a pool of opinions.

[Bruce]

Roberts has nothing against Black's Law Dictionary:

The threshold question is whether an administrative order assessing additional royalties can reasonably be understood to be an "action for money damages" initiated by the filing of a "complaint." The phrase "action for money damages" points strongly to a suit in a court of law, rather than an agency enforcement order that happens to concern money due under a statutory scheme. See BLACK'S LAW DICTIONARY 389 (6th ed.1990) (defining "damages" as "pecuniary compensation or indemnity, which may be recovered in the courts") . . . .

Amoco Production Co. v. Watson, 410 F.3d 722, 733 (D.C. Cir. 2005). I only looked at a couple of his D.C. Circuit opinions so there's probably more.

[Kevin]

Chief Justice Roberts actually has cited a law review article in one of his opinions. He gave a hat-tip to Judge Friendly's article, Indiscretion About Discretion, 31 Emory L.J. 747, 758 (1982), in his opinion in Martin v. Franklin Capital Corp., 126 S. Ct. 704, 710 (U.S. 2005).

[The Thinker]

Perhaps it is also because that it what he knows--he did have an exclusive appellate, namely Supreme Court, practice for a number of years and may simply be more comfortable in his early decisions to go what with every writer is told--write what you know.

[Robert Schwartz]

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.

[Robert Schwartz]

"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.

[marghlar]

Simon:

I think its pretty clear in context that the word "treaties," in the list, "law review literature, treaties, casebooks, or anything else not written by one of the three branches themselves," is in fact a misprint. David probably meant treatises, no treaties.

Personally, I'd like them to cite law reviews when they are relying on them -- it helps all of us check their work. I find it hard to regard secondary source citation as a problem -- it's only persuasive, and it doesn't enable them to do anything they couldn't do anyway. Plenty of constitutional law was made up out of thin air long before the first law review article was written.

[Simon]

Marghlar,
I think you're almost certainly right. In my defense, "treaties" would make a little bit of sense in that context too, insofar as its my observation (although if pressed, I can't offer specific examples, it's more of a general impression) that in their haste to castigate the use of foreign law, some conservatives overreach to the point of almost reading treaties out of the supremacy clause. So in context, it would make some sense for it to say traties, but I agree it is more likely to be as you say.

[JGR]

My goodness, the nerve of our Supreme Court to decide legal issues based on **gasp** the law! How dare they not pay more attention to the liberal, elitist academia! I mean, academia should be a solid source of our law since it is so grounded in reality; so much so, that they couldn't even get Stevens or Ginsburg to buy into their ridiculous arguments in this case. Oh well, I guess liberal America will just have to advance their progressive political agenda in the **gasp** political branch of our government -- imagine that!

[john]

During oral argument on this case, Judge Roberts was dead on when he chided the attorney for the plaintiffs by saying that their law school faculties are not concerned about protecting free speech in this case. Rather, they are trying to enforce less speech for others with whom they disagree in a manner that would put a smile on the face of George Orwell. Far Left ideology disguised as faux scholarly discourse is infecting the academe - both in universities and, most disturbing, in so called "elite" law schools. Harvard Law School's seminar this month on "Teaching Law From The Left" offers a clue as to why law professors are citing neo-Marxist, open borders, Global Exchange propaganda in law review articles rather than making sound legal arguments based upon Supreme Court precedent. The result: 8-zip. Semper Fi!

[Brian]

The so-called "broader legal culture" damaged its reputation by filing a frivolous lawsuit in this matter, by publishing a constitutionally illiterate open letter during the contested presidential election of 2000 (see Judge Posner's demolition of that letter in his book Breaking the Deadlock), etc.

So, surprise, surprise. Treat law as politics, my pompous professor friends, and you will be dismissed as unserious people with an ax to grind.

[LexAquila]

Fascinating potential is raised by the Professor's finding. We will have to watch closely.

As to the DC Circuit opinions of Roberts, C.J., it is also interesting to find him citing secondary authorities. However, it is possible (perhaps likely) a movement from appellate judge to SCOTUS Justice has some impact here. I am in a holding pattern until we see more work product.

[Diesel]

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