Comments on comments on comments on FAIR v Rumsfeld

More links to comments from the blawgs can be found on SCOTUSblog, if you haven't already experienced the diminishing returns of the law professoriate competing to find novel (and in most cases, more tenuous) issues in the 21 page opinion. One thing caught my eye, though.

A post on Prawfsblog offers a comment on a post from LawCulture commenting on the opinion. Both posts were made yesterday, actually, but the interesting thing about them is that both are remarking upon the lack of citations in this most recent of CJ John Roberts' opinions to anything other than Supreme Court opinions, statutes, and regulations. That means no law review articles or casebooks. David Barron, who made the observation, writes that this "methodology" suggests a "cramped and technical" vision of constitutional decision making. The later post analyzes the analysis of the first.

We can observe a few things from this stuff: 1) Law professors can get into some awfully trivial details while looking for "insights" in legal opinions; 2) they can be very sensitive to perceived "slights" like not being cited by a Supreme Court justice; 3) they are amazingly quick to make inferences from practically no data.

As Chief Justice of the United States, Roberts hasn't cited the work of law professors (as pointed out in the comments, he did cite one law review article in one of the earlier opinions, although that was written by a judge for whom he clerked who had never been a professor) so far. Law profs (and lawyers) tend to attribute much more importance to citations than is warranted. They are inclined to believe that when a judge cites a text, it means that that text had some influence on their thinking, or led them to their conclusion. So, if CJ Roberts doesn't cite law profs' work, he is resisting or denying their influence on constitutional law. Some tragedy is presumed to follow from this.

At present, Roberts has written all of three opinions as a Supreme Court justice, so it's a bit early to call it a "pattern" let alone a methodology. Even if you grant that Roberts cites materials from legal scholarship less than some other justices, it doesn't necessarily follow that his jurisprudence is less influenced by it, since it remains to be seen that Supreme Court jurisprudence is significantly influenced by legal scholarship at all (the "best" case for it is probably Ronald Kahn's The Supreme Court and Constitutional Theory, and best doesn't mean good in this case.) Moreover, even if you accept that Roberts cites legal scholarship less than others have and that he is therefore less influenced by or responsive to it, it doesn't follow that anybody should be concerned about it.

OK, maybe law professors should worry about it, because it eliminates one of their primary claims to relevance, dubious as that claim is.