The Supreme Court, Standing on the Shoulders of Legal Scholars

As we look back on the Supreme Court’s decisions over the last term and look forward to the nomination of a justice to take the late Justice Scalia’s place on the bench, one recognizable constant is the high court’s reliance on foundational treatises and legal guidebooks. Jurisprudence finds its way forward, in part, by following the guideposts of sound legal writing – handbooks, reference works, restatements of law – and, in the 2015-2016 term, the Supreme Court quoted and cited many titles published by Thomson Reuters.

In the last term, the Supreme Court quoted from or cited more than 20 Thomson Reuters works in at least 30 cases. Perhaps no other series better exemplifies judicial reliance on scholarly legal writing than the restatements of law, which are published by American Law Institute Publishers, a joint venture of the American Law Institute and Thomson Reuters Westlaw. In 10 cases in its last term, the Supreme Court cited or quoted from restatements.

Whole Woman’s Health v. Hellerstedt, 2016 WL 3461560 (U.S. June 27, 2016) – the landmark decision holding restrictions on abortion service providers in Texas to be unconstitutional – turned initially on matters of res judicata. Justice Breyer quotes repeatedly from the Restatement (Second) of Judgments, before being taken to task by Justice Alito, dissenting, for what he argues is the majority’s unreflected reliance on the “new approach” taken by the second Restatement for determining the scope of a cause of action or claim. And in Universal Health Servs., Inc. v. U.S. ex rel. Escobar, 136 S.Ct. 1989 (2016), an important case for government contractors on implied false certification under the False Claims Act, Justice Thomas also quotes repeatedly from the Restatement (Second) of Torts and cites the Restatement (Second) of Contracts.

Leading legal guidebooks published by Thomson Reuters also figured significantly into the court’s jurisprudence. Charles A. Wright and Arthur R. Miller’s Federal Practice and Procedure, a comprehensive and authoritative 33-volume set, is cited and quoted parenthetically by Justice Ginsburg in Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016), a case brought by representatives of Americans killed in Iran-sponsored attacks. Chief Justice Roberts, dissenting, also cites to Federal Practice and Procedure twice. The set is quoted by Justice Kennedy in Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016), a case in which Iowan meatpackers sued for, and won, overtime wages under the Fair Labor Standards Act, and by Justice Alito, in a dissent from denial of certiorari in Ben-Levi v. Brown, 136 S.Ct. 930 (2016), where he argues that the court should take up and reverse the denial of a Jewish inmate’s pro se challenge to a North Carolinian prison policy preventing communal prayer and study of the Torah.

Justice Ginsburg, in dissent, quotes parenthetically from Wayne R. LaFave et al.’s Criminal Procedure, 4th edition, in Puerto Rico v. Sanchez Valle, 136 S.Ct. 1863 (2016), a firearms sales case in which the majority held that Puerto Rico and the U.S. are not distinct sovereigns for double-jeopardy purposes. Justice Ginsburg cites the same work in Betterman v. Montana, 136 S.Ct. 1609 (2016), holding that the Sixth Amendment’s guarantee of a speedy trial does not protect a defendant after conviction. The defendant challenged a delay in sentencing after he pleaded guilty to bail jumping. In that case, Justice Ginsburg also parenthetically quotes Arthur W. Campbell’s Law of Sentencing, 3d edition, for the general rule that preconviction detention is usually credited as time served.

And the Court, per curiam, quotes Donald E. Wilkes’s State Postconviction Remedies and Relief Handbook in Johnson v. Lee, 136 S.Ct. 1802 (2016), a habeas corpus case following a murder conviction, and Justice Alito quotes Kevin F. O’Malley, Jay E. Grenig & William C. Lee’s Federal Jury Practice and Instructions in Ocasio v. U.S., 136 S.Ct. 1423 (2016), on intent in the criminal law on conspiracy, and Justice Thomas cites Mertens Law of Federal Income Taxation in Direct Mktg. Ass’n v. Brohl, 135 S.Ct. 1124 (2015), a case on taxation of certain Coloradan retailers, and the list goes on.

One title cited by the high court is remarkable and poignant for legal editors and writers at Thomson Reuters. Lockhart v. U.S., 136 S.Ct. 958 (2016), was issued on March 1, just weeks after Justice Scalia’s passing. Both the majority and dissent cite Reading Law: The Interpretation of Legal Texts – one of two Thomson Reuters Westlaw titles penned by Justice Scalia with Bryan A. Garner (the other is Making Your Case: The Art of Persuading Judges). The criminal case turned on statutory interpretation: whether a dependent clause modified all items in the preceding list or only the immediately preceding item. Justice Sotomayor cites Scalia and Garner, and Justice Kagan, dissenting, quotes them. One imagines the late justice turning his attention – perhaps from a boisterous, heavenly debate on scriptural originalism with the likes of Justice Marshall and John Milton and Saint Paul – to smile at the dueling citations by two of his former colleagues.

Finally, no survey of the Supreme Court’s recourse to prominent Thomson Reuters Westlaw publications can omit Bryan A. Garner’s Black’s Law Dictionary. The legal lexicon’s importance cannot be understated. In seven cases in its last term, the court cited Black’s. The high court cited the foundational work for definitions of accused, concrete, discrimination, matter, price, and rate. Most citations are to the current 10th edition, but the court cited four previous editions, including Justice Kagan’s citation to the 1933 third edition in Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 136 S.Ct. 1562 (2016), for the natural reading of brought in a case on New Jersey brokers’ alleged manipulation of stock prices, and Chief Justice Roberts’s use of the 1951 fourth edition in McDonnell v. U.S., 2016 WL 3461561 (U.S. June 27, 2016), vacating the corruption conviction of former Virginia governor Robert McDonnell, with citations to the definitions of cause, controversy, and suit.