Courts, Law Schools

The Most Popular Supreme Court Justices -- In Law School Casebooks

Yes, the late Justice Scalia is up there -- but he has some surprising company.

By  
on

Yes, the late Justice Scalia is up there — but he has some surprising company.

Lawyers love citations, and lawyers love rankings. So it’s no surprise that lawyers love rankings based on citations. Law professors and judges derive a disturbingly high amount of their self-worth from the plethora of rankings that list the most influential scholars and jurists based on citation count.

In light of this, it’s a little surprising that nobody has previously tried to put together the ranking that Professor Brian Fitzpatrick and 3L Paulson Varghese of Vanderbilt Law put forward in a new paper. From the abstract:

In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases.

We find that Scalia is at or near the top of most of the metrics we explore here, but he does not tower over the competition. Indeed, the data reveal that perhaps the most important factor driving inclusion in our casebooks is seniority: chief justices and justices who led their ideological wings of the Court have a great deal of power to assign themselves opinions that are likely to end up in our casebooks.

You can see the accuracy of their observation in this first table, where two justices who had assigning power for years — Chief Justice William H. Rehnquist, head of the conservative wing during his time as chief, and Justice John Paul Stevens, longtime leader of the liberals — share top billing with Justice Scalia:

Lawyers are famously averse to anything mathematical, but folks with even a passing knowledge of statistics are surely asking, “Is this table of total opinions featured in casebooks adjusted for length of service?” Nope, it isn’t — which might explain why Justice John Paul Stevens, the third longest-serving SCOTUS justice, fares so well. (Justice Scalia is way behind Justice Stevens, clocking in at #16.)

Sponsored

Of course, Fitzpatrick and Varghese thought of this issue too. Here’s the next table:

Note the high placement of Justice Samuel A. Alito. As Fitzpatrick and Varghese explain in the abstract, Justice Alito “is included in our casebooks to an especially surprising extent given that, until this year, he has always been the most junior member of his wing of the Court.” As they wonder in the final lines of their paper, “Has Alito out-Scalia’d Scalia? Only time will tell.”

My prediction: Justice Alito’s influence will continue to grow over time. Indeed, I view SAA as perhaps the most underrated member of the current Court. He doesn’t have an inspiring life story (Justice Thomas and Justice Sotomayor), doesn’t do a huge number of public appearances (Justice Ginsburg and Justice Breyer), doesn’t have a colorful writing style (Chief Justice Roberts and Justice Kagan), and doesn’t hold the fate of the free world in his hands (Justice Kennedy). But his intellectual prowess and analytical rigor are familiar to anyone who reads his opinions or listens to him at oral argument — where he doesn’t speak as often as others, but when he does speak, his subtle yet incisive questions cut to the heart of a case.

Elsewhere in surprising findings, check out their footnote 23:

Sponsored

Perhaps even more remarkable (given her newfound lay popularity) than the most overrepresented justices is the most underrepresented one: on both the normalized total and separate opinion measures, the justice who finished dead last (112th out of 112) was Justice Ruth Bader Ginsburg.

Ouch. RBG might be Notorious, but it seems her notoriety does not extend to law school casebooks.

Thanks to Fitzpatrick and Varghese for their interesting research. The full paper is posted on SSRN and has 26 abstract views and 8 downloads as of this writing. Click here to read the abstract — and help the authors move up in those oh-so-important SSRN rankings.

UPDATE (1/9/2018): The article, published in The University of Chicago Law Review’s special issue on Justice Scalia, can also be found here.

Scalia in the Casebooks [SSRN]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

Topics

, , , , , , , , ,