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Wednesday, July 20, 2011

Legal academia and the Court

By and large, it is not particularly surprising that Chief Justice John Roberts would take a dim view of legal academia and its work.  The Chief is famously known for his mechanical jurisprudence view of the law, where judging is umpiring.  Legal academics spend most of their time demolishing this view.  So of course the Chief Justice will find nothing worth citing in law review articles.

But one striking thing about the famously collegial Chief Justice attacking legal academics and their relevance to the work of judges might be the fact that a majority of his current colleagues are former academics.  Justices Scalia, Kennedy, Ginsburg, Breyer, and Kagan are all former law professors, and at least Justice Kagan is a fairly recent one.  To say that modern legal scholarship is irrelevant to the work of Supreme Court judging is at least an implicit attack on the qualifications of all these justices (since their background is now "irrelevant").  Added to this is that many of the most respected court of appeals judges are also well known for their legal scholarship -- Posner, Easterbrook, Calabresi, and Douglas Ginsburg come to mind -- and one wonders whether the Chief is really aware of how many colleagues he is insulting.

Posted by Tun-Jen Chiang on July 20, 2011 at 04:25 PM | Permalink


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Petherbridge and Schwartz's "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship" available via SSRN:


may be of interest on this topic.

Posted by: Shag from Brookline | Jul 22, 2011 8:58:41 AM


It is true that "Presidential Administration" isn't heavily doctrinal, although I wouldn't put it at the far opposite end of the scale either, but "Chevron’s Nondelegation Doctrine", "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine", and "The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion" certainly do qualify.

Posted by: Brad | Jul 21, 2011 10:34:10 AM

Brad, I fail to see how, for example, Kagan's "Presidential Administration" article can be characterized as firmly on the doctrinal side of things. Sure, she does talk about doctrine toward the end, but that is not what the article was about. And if you regard that as doctrinal, then contrary to CJ Robert's characterization, most legal scholarship still talks about doctrine in much the same way as Kagan did.

Posted by: TJ | Jul 20, 2011 10:32:55 PM

Kagan, Scalia and Ginsburg all had scholarship firmly on the - now vanishing - doctrinal side of things. I'm not familiar with Kennedy or Breyer's work, but it wouldn't surprise if they did too.

I have a feeling that is not the type of scholarship Roberts was thinking of when he made his comments.

Posted by: Brad | Jul 20, 2011 10:27:56 PM


It seems to me that your argument goes like this:

(1) A subset of Group A does activity B, and as a result of doing B, Group A does not have much influence on Group C.
(2) Some people who once were in Group A are now in Group C.
(3) Therefore, people who were once in Group A and are now in Group C must be insulted by the claim that Group A does not have much influence on Group C because of its activity B.

I guess I don't see how (3) follows from (1) and (2). Anyway, it seems like we'll have to agree to disagree on this one.

Posted by: Orin Kerr | Jul 20, 2011 7:28:56 PM

Orin, your are entitled to your opinion of what is likely or not, but I'm glad that we cleared up that you are not missing anything.

My point is pretty simple. CJ Roberts has said that academic work is not relevant to judging. Most of his colleagues did academic work and used that academic work as part of their qualification to be a judge. Perhaps they are not insulted. But it sure seems a pretty simple insult to me. Ironically, as an academic who is not a judge, there is no reason for me to feel insulted by the comment.

Posted by: TJ | Jul 20, 2011 6:33:45 PM


If you take my comment and replace the word "worried" with the word "claiming," the comment still stands.

I think the problem is that none of the Justices are remotely likely to be insulted by what Roberts said, and yet you seem committed to coming up with some theory by which they must be insulted somehow.

Posted by: Orin Kerr | Jul 20, 2011 6:25:05 PM

Orin, I'm not worried that CJ Roberts is insulting his colleagues, I am claiming that he has. Your response seems to be that nobody would think that his claim should be read that way because his colleagues were undistinguished academics, and his comment cannot be read to apply to undistinguished academics. My counter-response is that none of the other justices are likely to think of themselves as undistinguished academics to which the comment thereby does not apply. And if someone were to make that defense to those other justices expressly, as the reason that CJ Roberts could not possibly have been intending his remark to apply to them, that would increase the insult, not decrease it.

Posted by: TJ | Jul 20, 2011 6:17:28 PM


I'm confused. You seem worried that Chief Justice Roberts is insulting his colleagues. But when I respond that he's not insulting them, you appear to reply that it's even *worse* and even *more* insulting to them that he's not insulting them. What am I missing?

Posted by: Orin Kerr | Jul 20, 2011 6:13:33 PM

And, also, Orin, saying that the attack of legal academia cannot be construed as an attack on current justices because they were undistinguished academics is more, not less, insulting to those justices.

Posted by: TJ | Jul 20, 2011 5:53:27 PM

Marc, I'm not feeling insulted at all, in the sense that a predictable and understandable criticism really causes no pain -- much as the Justices basically disregard law professor criticisms of their work.

But the claim is still more than what you or Orin are representing it to be. He says that academics should consider whether their research is "going to be of help to anyone." Not "going to be of direct help to anyone". Yes he says that academics are free to keep doing what they are doing, but that is like saying people are free to burn the flag. The disdain is unmistakable.

Orin, I don't think that Roberts actually believes in mechanical jurisprudence. But he sure takes every opportunity to pretend that he does, and "only an ingénue" -- as Laurence Tribe might say -- would fail to understand what Roberts was implying to the Judiciary Committee with that remark. The fact that he doesn't really think it makes it worse, not better. And as for criticizing recent trends, the trend toward interdisciplinary and less doctrinal scholarship is not so recent, nor is the trend to a realist view of law that is ultimately responsible for all of this disconnect.

Posted by: TJ | Jul 20, 2011 5:49:08 PM

Gee, TJ, I'm sorry that you feel so insulted, but I think you are wrong about the nature of the claim. Here's a clip in which the Chief Justice makes the statement that I think you are objecting to, beginning at about the 31 minute mark:


My reading of these statements is that the Chief Justice is saying that *if* legal academics wish to have a more direct influence on the practice of law (I concede that this is a larger claim than I had thought above), then they ought to be thinking about their audience more carefully in selecting topics. I'm still not sure, as I said above, that many law professors whose work is deeply worthwhile, interesting, and important, ought to be offended that their work is not particularly relevant to the practice of law. For what it's worth, I'm on record as not investing a great deal of energy in worrying about these issues, but I recognize that many excellent legal scholars do. All that aside, I don't see anything offensive about the Chief Justice's claim that those who desire greatly to influence the practice of law think in more practical terms about the object and audience of their research.

Posted by: Marc DeGirolami | Jul 20, 2011 5:37:04 PM

TJ writes:

The Chief is famously known for his mechanical jurisprudence view of the law, where judging is umpiring.

I disagree. Academics are famous for wanting to impute the view to some judges that they believe in "mechanical jurisprudence," but no actual judges take that view -- not Roberts, certainly.

Justices Scalia, Kennedy, Ginsburg, Breyer, and Kagan are all former law professors, and at least Justice Kagan is a fairly recent one. To say that modern legal scholarship is irrelevant to the work of Supreme Court judging is at least an implicit attack on the qualifications of all these justices (since their background is now "irrelevant").

I think that's wrong, too. Roberts' criticism is primarily about recent trends in legal scholarship, and none of the current Justices who were once academics ever followed that trend. Indeed, none of the Justices who once were professors were particularly known for their scholarship: Most of them only wrote a handful of articles in their time as academics.

As for whether Roberts is aware of who he is poking fun at, I would think the answer is yes -- it's not a particularly subtle remark.

Marc, Chief Justice Roberts did not claim that legal scholarship is not immediately relevant or directly influential. He said it was irrelevant, period.Did he? According to the news reports I read, Roberts said that he agreed with Harry Edwards that there was a "disconnect" between the academy and the bar, and that many articles aren't "of much help to the bar." Can you pinpoint where he said that legal scholarship is irrelevant, period?

Posted by: Orin Kerr | Jul 20, 2011 5:32:46 PM

Marc, Chief Justice Roberts did not claim that legal scholarship is not immediately relevant or directly influential. He said it was irrelevant, period. And the very fact that you need to put in those qualifiers illustrates how insulting the real claim is.

Posted by: TJ | Jul 20, 2011 5:07:24 PM

I'm having a difficult time seeing why legal academics, let alone former academics (who left academia to become judges), necessarily would be offended or personally insulted by the claim that their research is not immediately relevant to the work of the Supreme Court.

But even if some might really wish that their work was more directly influential, I still don't understand why they would resist the claim that a significant part of what legal academics do is not directly useful. Surely that is true as a descriptive matter, isn't it?

And it's probably also true that at least some -- perhaps several -- of the judges whom you list share the Chief Justice's view about that, no?

Posted by: Marc DeGirolami | Jul 20, 2011 4:58:46 PM

I think this gives insufficient credit to CJ Roberts and the considerably more complex motivations he likely has for making those kinds of statements. Also, I have never really understood where people get from the umpiring analogy the idea that Roberts thinks judging is mechanical. The point of the umpiring analogy is that judges have good faith disagreements about the correct application of indeterminate standards like the strike zone. He is rebutting the idea that all disagreements about the correct outcome of a case can be reduced to the claim that the judge decided the case based on his/her political/policy preferences; he is not making the claim that judging doesn't involve discretion.

Posted by: anon | Jul 20, 2011 4:49:57 PM

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