The books of the justices.

AuthorGreenhouse, Linda
PositionBooks cited by US Supreme Court justices in their opinions

INTRODUCTION: TWO JUSTICES

On June 27, 1979, the Supreme Court upheld an affirmative-action plan that set aside half the places in a steel industry training program for African American steelworkers. (1) This is how then-Associate Justice William H. Rehnquist began his dissenting opinion in the case, United Steelworkers of America v. Weber:

In a very real sense, the Court's opinion is ahead of its time: it could more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court's opinion borrows, perhaps subconsciously, at least one idea. Orwell describes in his book a governmental official of Oceania, one of the three great world powers, denouncing the current enemy, Eurasia, to an assembled crowd ... (2) Justice Rehnquist went on to recount how, in the novel, the Oceania official is handed a slip of paper and seamlessly redirects the crowd's attention to the new enemy, Eastasia. (3) "Today's decision," Justice Rehnquist continued, "represents an equally dramatic and equally unremarked switch in this Court's interpretation of Title VII." (4) While the Civil Rights Act's employment provision had been previously understood to "prohibit racial discrimination in employment simpliciter," he wrote, it was now being invoked, to the contrary, as a shield for a racial quota. (5)

From this reference to George Orwell's iconic novel of a dystopian future, we learn several things. Clearly, Justice Rehnquist was familiar with the book and had most likely even read it, along with most readers of Supreme Court opinions. He thus had reason to expect the reference to resonate with his audience, and that invoking it would provide a dramatic image of a world turned cynically upside down. And by invoking a key scene familiar to all readers of the novel, he could suggest, without having to say so explicitly, that the majority was not simply wrong on a matter of statutory interpretation, but that it was deliberately, mischievously, even deviously wrong.

Fast forward thirty-seven years to this past June and to a very different justice who also sought to dramatize what she viewed as a majority opinion's profound error. Dissenting in Utah v. Strieff, (6) an exclusionary-rule case in which the majority refused to suppress evidence obtained after a suspicionless and concededly unlawful police stop, Justice Sonia Sotomayor put a shelf of books on display. These included classics of African American literature (W.E.B. Du Bois, The Souls of Black Folk, and James Baldwin, The Fire Next Time) as well as modern scholarship (Michelle Alexander, The New Jim Crow, and Lani Guinier and Gerald Torres, The Miner's Canary) along with a current best-selling memoir, Between the World and Me by Ta-Nehisi Coates. (7)

Justice Sotomayor cited ten books in all, of which the more recent ones concerned the impact of African Americans' encounters with the criminal justice system. The defendant in Utah v. Strieff happened to be white, a fact Justice Sotomayor used to rhetorical advantage: "The white defendant in this case shows that anyone's dignity can be violated in this manner," she wrote. (8) The case, she continued,

tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued. (9) If Justice Sotomayor's goal was to add force to her dissent and make sure the case would not be submerged by the tide of more eagerly anticipated late-June opinions, there is no doubt that she succeeded. By the end of the day on which it was issued (June 20, 2016), her dissent had received wide and growing attention. (10) Would it have achieved the same impact without the books? From the way in which accounts of her dissent singled out the books for special attention, the answer is almost certainly "no." (11)

  1. JUSTICES AND THEIR BOOKS: AN OVERVIEW

    Justices cite books. Collectively, they cite many books: 132 separate volumes during October Term (OT) 2015, with 41 of the Term's 62 signed, published opinions (12) containing citations to books. (13)

    For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year's work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations. (14)

    To begin with, I should define what I mean by "books." For the purposes of this Foreword, I excluded some types of reading matter that may have a book-like appearance or that others might view as a book: government reports and statistical compilations, including the Federal Sentencing Guidelines; the Model Penal Code; the Congressional Record; the Federal Register; and other current compilations of statutes or regulatory codes. (I include some older compilations as primary source material, e.g., a volume of the Vermont State Papers 1779-1786, published in 1823 and cited by Chief Justice Roberts. (15)) I also excluded monographs, databases, and reference materials residing entirely on the Internet.

    This left 132 books, which I categorized as follows:

    Figure 1. Categories of Books Cited Type Cited Treatises and practice manuals 51 Primary sources, historical 27 History and political science 17 Law 16 Dictionaries 7 Restatements 6 Literature 5 Primary sources, modern 3 Every justice cited at least several books during the Term, with the exception of Justice Scalia, who cited only one book--Black's Law Dictionary--in the four opinions he produced (two for the Court and two in dissent) before his death in February. (16) But three of his colleagues (Justices Thomas, Sotomayor, and Kagan) cited Justice Scalia's 2012 collaboration with Bryan A. Garner, Reading Law: The Interpretation of Legal Texts. (17) In fact, Justices Sotomayor and Kagan cited this book on opposite sides of the same case. (18)

    Having read many Supreme Court opinions over many years, I embarked on this project with only a few hunches about what I would find. For one, I assumed that the Federalist Papers would make a strong showing--and they did indeed during OT 15, with twelve of the papers garnering thirteen citations (although enthusiasm for the Federalist Papers was not particularly widespread, with eight of those citations coming from Justice Thomas). I expected justices looking for a reliable history of the Revolutionary period to turn to Gordon Wood, and three of them did (Chief Justice Roberts and Justices Thomas and Breyer). (19) I did not, however, expect Justice Sotomayor's citation-laden dissenting opinion in Utah v. Strieff. (20) It came as a gift.

    There were other surprises as well. I was familiar with the oddly robust literature on Supreme Court justices' uses of dictionaries. (21) A recent note in the Yale Law Journal, compiling data through 2013, concluded that Justice Alito was "now the most frequent user of dictionaries on the Supreme Court." (22) But in OT 15, Justice Alito was nowhere near the top of the list, with only four citations to dictionaries, compared with Justice Sotomayor's ten, Justice Kagan's eighteen, and Justice Thomas's fourteen.

    Individual citation practices vary widely, in suggestive ways. For example, Justice Kennedy's opinions contained by far the fewest citations. (23) From his omnipotent position at the center of the Court (insofar as an eight-member Court has a center), perhaps Justice Kennedy had no need to reach for outside authority in order to persuade others; he could sit back and watch his colleagues compete for his vote. He published twelve opinions during the term (nine for the Court, one in dissent, and two concurring), citing books in only two of them, for a total of five citations: Blackstone, cited three times in a single dissenting opinion, (24) and four treatises. (25) By contrast, Justice Thomas's thirty-seven opinions (seven for the Court, sixteen in dissent, and fourteen concurrences) contained sixty-five citations, with many references to historical sources, perhaps reflecting his belief that the answer to any question lies somewhere in history. (26)

    Because justices differ so greatly in their opinion production (although majority opinion assignments are distributed roughly equally, justices are free to write as many concurring and dissenting opinions as they like), the raw numbers can be uninformative and even misleading. To give a more accurate snapshot of the individual citation practices, I compiled a citation ratio (CR), which is simply the number of book citations divided by the number of opinions, for each justice. Although Justice Thomas's sixty-five citations were the most numerous, he did not emerge at the top of the citation ratio list, as shown here, from the lowest CR to the highest:

    FIGURE 2. CITATIONS, OPINIONS, AND CITATION RATIOS BY JUSTICES Justice Citations Opinions CR Kennedy 5 12 0.41 Breyer 14 16 0.88 Ginsburg 19 16 1.19 Sotomayor 30 18 1.67 Thomas 65 37 1.76 Kagan 25 12 2.08 Roberts 24 11 2.18 Alito 38 16 2.38 Among the forty-one cases that cite any books, there was an average of 4.8 citations per case (by which I mean separate citations, not separate books, since not infrequently, justices cite the same book or, as Justice Kagan put it in Luna Torres v. Lynch, engage in "brandishing dictionaries" (27)).

    There was little correlation between the prominence of a case and the number of citations the opinions contained. For example, among the...

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