An unexpected shift to the right: the conservative justices’ recent embrace of law review articles

Brent Newton is a Practitioner in Residence at Penn State Dickinson Law. 

Law review articles have long been criticized for being out of touch with actual legal practice and having little influence on judicial decision making. Perhaps most notably, in 2011, Chief Justice John Roberts expressed such criticism in comments to the U.S. Court of Appeals for the 4th Circuit’s judicial conference: “Pick up a copy of any law review that you see … you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something.” That, he said, “isn’t of much help to the bar.“

Around this time, I, too, was quite skeptical of the practical utility of most law review articles as being too detached from the real world of law practice. In 2012, to see if my suspicion was warranted, I conducted a relatively simple but telling empirical study of Supreme Court justices’ citations of law review articles (including student notes and comments) in their opinions issued from Jan. 1, 2001, through Dec. 31, 2011. By analyzing 1,961 opinions, my study found that, on average, the justices cited only 0.52 articles per opinion. What’s more, this citation rate was significantly lower than that of justices in the last quarter of the 20th century.

Perhaps just as interestingly, my 2012 study found that liberal justices cited law review articles far more frequently than conservative justices. (A justice is labeled “conservative” or “liberal” based on their score on the Martin-Quinn scale — a well-respected empirical measure of justices’ ideological disposition.) Indeed, the three justices who cited law review articles most frequently were all liberals (Justices Stephen Breyer, John Paul Stevens, and Ruth Bader Ginsburg), while the three justices who cited law reviews least frequently were all conservatives (Justice Clarence Thomas, Chief Justice William Rehnquist, and Roberts). 

Over a decade later, given the larger conservative majority on the court, I decided to update my study to see if the justices were (as I would expect) citing law review articles even less frequently than before. Together with one of my students, May Hennessy, and using essentially the same methodology as the one used in my 2012 study, I conducted an updated study of the justices’ opinions issued from 2013 to 2024. Contrary to our expectations — given the low regard with which the conservative justices had previously treated law review articles — what we found was quite surprising: a substantial increase in the overall citation rate among all types of opinions. And, to make things even more surprising, this was explained by a dramatic shift in the differing rates of citations to law review articles by conservative justices compared with their liberal colleagues. 

Specifically, we analyzed the 653 Supreme Court cases decided with opinions after briefing and oral argument following the granting of certiorari by the Supreme Court from October 2013 through June 2024 (11 full Supreme Court terms). Our updated study shows that one or more justices cited at least one law review article in 490 (34.0%) of the 1,441 total opinions issued during that time period. Of the 653 total majority and plurality opinions issued during that decade, 180 (or 27.6%) majority and plurality opinions included citations to one or more law review articles. Those rates were significantly higher than what I found in my 2012 study (which found the justices cited at least one law review article in only 20.2% of all types of opinions, and in 21.3% of majority opinions).

As I’ve noted, my 2012 study showed that, on average, the justices cited 0.52 articles per opinion among all 1,961 opinions then analyzed. Conversely, among the total 1,441 total opinions in the current study period, the justices coincidentally cited law review articles 1,441 separate times — meaning, on average, justices cited one law review article per opinion. In other words, there has been a nearly a two-fold increase in the average number of law review articles cited per opinion across all types of opinions.

And, as noted earlier, the dramatic increase in citation rates is primarily attributable to the dramatic increase in the rate that conservative justices, specifically, have cited law review articles during the past 11 years. Indeed, unlike in the prior study period, during the current study period, conservative justices cited law review articles at a dramatically higher rate than liberal justices in all types of opinions. 

To break this down: 

For All Types of Opinions

• 490 of 1,441 opinions (34.0%) cited at least one law review article — with 1,441 total articles cited, or 1.0 articles cited per opinion on average 
• Conservative justices were responsible for 1,045 of all 1,441 citations (72.5%)
• Liberal justices were responsible for 396 of all 1,441 citations (27.5%)

Majority/Plurality Opinions

• 180 of 653 opinions (27.6%) cited at least one law review article — with 369 total articles cited, or 0.57 articles cited per majority/plurality opinion on average
• Conservative justices were responsible for 270 of the total 369 citations (73.2%)
• Liberal justices were responsible for 99 of the total 369 citations (26.8%)

Concurring Opinions

• 77 of 237 opinions (32.5%) cited at least one law review article — with 338 total articles cited, or 1.43 articles cited per concurring opinion on average
• Conservative justices were responsible for 299 of the total 338 articles cited (88.5%)
• Liberal justices were responsible for 39 of the total 338 articles cited (11.5%)

Concurring-in-Judgment Opinions

• 47 of 116 opinions (40.5%) cited at least one law review article — with 125 total articles cited, or 1.14 articles cited per concurring-in-judgment opinion on average
• Conservative justices were responsible for 117 of the total 125 articles cited (93.6%)
• Liberal justices were responsible for 8 of the total 125 articles cited (6.4%)

Dissenting Opinions (in Full or in Part)

• 186 of 435 opinions (42.8%) cited at least one law review article — with 609 total articles cited, or 1.39 articles cited per dissenting opinion on average
• Conservative justices were responsible for 359 of the 609 total law review articles cited (59.0%)
• Liberal justices were responsible for 250 of the 609 total law review articles cited (41.0%)

One easy explanation for this may simply be that, during the past 11 years, conservative justices have outnumbered liberal justices. At the beginning of that period, there were five conservatives and four liberals, and by 2024, there was a full six-justice conservative majority on the court. Conversely, during the 11-year period examined by the prior study, conservatives barely outnumbered liberals on the court. Part of the explanation for the increase in conservative justices’ citations to law review articles is thus likely this imbalance.

But, as it turns out, this explanation alone is incomplete. Even accounting for the increased percentage of conservative justices’ opinions since late 2020, there still has been a dramatic increase in the overall rate of conservative justices’ citations to law review articles during the past 11 years. 

One can see this by looking at the increased rates in the opinions of Thomas and Justice Alito. Thomas was once among the least likely to cite law review articles — from 2001-2011, only 13.3% of his opinions cited at least one law review article, with an average of 0.32 law review articles cited per opinion. In the 2013-2024 period, this changed dramatically: A whopping 43.9% of Thomas’s opinions cited at least one law review article, with an average of 1.28 law review articles cited per opinion. This made Thomas more likely to cite law review articles than any other justice — a complete turnaround from the previous period studied. 

This holds similarly for Alito. In the 2001-2011 period, 20.2% of his opinions cited at least one law review article, with an average of 0.51 law review articles cited per opinion. In the 2013-2024 period, on the other hand, 28.90% of Alito’s opinions cited at least one law review article, with an average of 1.02 law review articles cited per opinion.

The natural question is why the conservative justices, once among the primary critics of law reviews, have thus changed their tune over the past decade. Although the updated study has not attempted to answer this question, I can offer at least two possibilities. First, perhaps the conservative justices have been influenced by a new crop of conservative scholars — including their former law clerks who have more frequently begun to take jobs in legal academia, and whose articles may increasingly be published in law reviews. Another possibility is that conservative justices’ more recent willingness to overrule precedent (or willingness to publicly advocate that precedent should be overruled) has increasingly relied on law review articles to make that case. 

In any event, for now, it is sufficient to say that our findings indicate that the utility of law review articles — at least when measured by Supreme Court justices’ citation rates — has notably increased, and that it is conservatives who are heartily embracing that legal scholarship.