In a notable turn of events, conservative justices who have historically been less inclined to cite law review articles in their opinions have now shown a marked increase in referencing such academic works. This development contrasts sharply with past trends where liberal justices were predominantly the ones drawing upon these sources for legal reasoning.
The shift is illustrated by a recent study conducted by Brent Newton of Penn State Dickinson Law, alongside his student May Hennessy, examining Supreme Court justices’ citations from 2013 to 2024. The study builds on Newton’s prior research from 2012, which reviewed citations from 2001 to 2011, revealing that at that time, conservative justices were significantly less likely to engage with law review articles than their liberal counterparts.
Within the latest study period, 34% of the 1,441 Supreme Court opinions included citations to law review articles. Notably, in comparison to the earlier study which found an average of 0.52 citations per opinion, the current analysis discovered an average of one law review article per opinion. This represents a near doubling of the citation frequency.
The research identifies a noteworthy shift: conservative justices accounted for 72.5% of all law review article citations, suggesting a significant change in their approach to incorporating academic legal scholarship. Historically resistant justices such as Clarence Thomas and Samuel Alito exemplified this trend. Thomas, who cited articles in just 13.3% of his opinions in the earlier period, increased his citation rate to 43.9% in the more recent period. Similarly, Alito’s citation rate rose from 20.2% to 28.9% over the same time frame.
While the study does not definitive offer reasons for this shift, it speculates that conservative justices might be influenced by the growing presence of conservative scholars in academia or are increasingly relying on these sources to support more radical reinterpretations or overrulings of precedent.
Other plausible explanations might include the change in the composition of the Court or a strategic pivot in the justices’ interpretative philosophies, where law review articles, once dismissed as over-theoretical, might now be viewed as valuable resources supporting more bold judicial stances.
Ultimately, the study’s findings suggest an increasing acknowledgment, at least among conservative justices, of the utility of academic legal scholarship in judicial decision-making processes, marking a significant evolution in the dialogue between the judiciary and academia.