Justices Citing Justices

14 Pages Posted: 31 Jan 2023 Last revised: 6 Jul 2023

See all articles by Jay Wexler

Jay Wexler

Boston University School of Law

Date Written: January 30, 2023

Abstract

Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one article focusing on the self-citation practices of justices, however, the scholarly literature has not focused on these questions. Until now, that is. In this Article, I provide the first empirical analysis of how often justices on the modern court cite the law review articles and books of other justices. The most interesting findings revealed in this section of the Article include the fact that Justice Scalia was by far the justice whose academic work has been cited most often by other justices in the modern era, and that Justice Thomas is the justice who most often cites the academic work of other justices. In the second part of the Article, I address the question of why justices cite the academic work of other justices. These reasons include paying honor or homage to other justices, scolding other justices for not following the teachings of justices they claim to be allied with, and, most controversially, pointing out how other justices have departed from their previous personal precedent or the personal precedent of purported judicial allies. The Article argues that this latter rationale for citing the work of other justices is inappropriate and more well suited to teenagers and Twitter trolls than high court judges.

Keywords: Supreme Court, Citation Practices, Personal Precedent, Justice Scalia, Dobbs, Gotcha

Suggested Citation

Wexler, Jay, Justices Citing Justices (January 30, 2023). Boston Univ. School of Law Research Paper No. 23-5, The Green Bag 2D, Available at SSRN: https://ssrn.com/abstract=4343096 or http://dx.doi.org/10.2139/ssrn.4343096

Jay Wexler (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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