When Supreme Court Chief Justice John Roberts gave his speech to the Fourth Circuit Judicial Conference in 2011, academics everywhere cried sad scholar tears.

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he . . . believes there is a great “disconnect between the academy and the profession.”

Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

Mean, hurtful words indeed.  So mean, so hurtful, that they still sting today, which is why Richard Re at PrawfsBlawg felt compelled to prove them to be lies.

Commentators have responded to these remarks in a number of ways. Some have agreed with the Chief Justice’s suggestion that scholars do and perhaps should pursue valuable goals other than being useful to judges. (The Chief seems to have had something like this in mind when he said: “that’s great.”) Others have pointed out that abstract research today can indirectly lead to practical doctrinal applications tomorrow, somewhat like the way that basic scientific research contributes to future innovations in applied science. And still others have suggested that “90% of everything is crap” (or carp), and we shouldn’t expect anything else of law reviews.

Instead of comprehensively addressing the law review debate, I just want to make a simple point: When considering the Chief Justice’s critique, it’s worth keeping in mind that the Chief Justice himself is in fact a consumer of law review articles and regularly cites them in his judicial opinions.

Re then provides a “non-exhaustive” list of law review articles taken from opinions authored by CJ Roberts, which notably includes some collected by Orin Kerr.

Was Roberts just being needlessly mean to academics, a hypocrite who secretly read law reviews in a hidden room behind his chambers late at night with highlighter in one hand, single-malt Scotch in the other, gleefully muttering, “yes, that will get RBG all twisted, bwahahahaha!!!”?

And once down that path conflating correlation with causation, Re goes all in.

The listed cites likely understate the Chief’s interest in law reviews, since he presumably considers many materials that, for one reason or another, don’t actually end up appearing in his published opinions. And, to repeat, the above list is not exhaustive. Indeed, I may have overlooked some cites in the very opinions listed above. (Please feel free to add other examples in the comments.)

Quantity and quality may not be the same, but quantity certainly adds to the weight of the evidence.

The fact that law review citations regularly appear in the Chief Justice’s judicial opinions casts the Chief’s famous critique of law reviews in a different light. Instead of taking the position that law reviews are generally irrelevant to the Court’s business, perhaps the Chief meant to convey that law reviews could or should be relevant to courts even more often than they currently are.

While Re takes perhaps a deeply charitable view of his own re-interpretation of Roberts’ critique, that law review articles are relevant now, but should be even more relevant, he is far less charitable to the Chief Justice, whom he apparently views as incapable of expressing himself clearly.

Or maybe the problem is that Re’s premise is so misguided from the outset that it not only fails to support his uncharitable view of Roberts’ critique, but reflects the depth of the disconnect between academics and how real cases in the real world are decided.

In the first comment to Re’s post, Neal Goldfarb sprinkles a little dose of reality on Re’s premise:

An alternative explanation for these citations is that Roberts (or one of his law clerks) takes law-review cites from the briefs and uses them in his opinions to support the points he wants to make.

This is a point I’ve made in the past as well.

Where he sees citation as a reflection of influence, I see it as cheap support for the court’s holding.

The only question is how to come up with a seemingly legitimate way to justify reaching the desired outcome.  Enter the lawprofs. They write and write and write, and produce lots of good stuff to make a judge appear thoughtful and learned. Maybe even scholarly, if it gives the appearance that they read that stuff.  And so they send their studious clerks on a mission to dig up whatever they can find to support their decision that the defendant burns.  And out pops a bunch of law review articles. The judge tells them to pick a couple from the profs at the good law schools, just enough to make his decision seem legit, and stick them into the paragraphs wherever possible. Like magic, the once baseless outcome now appears to be firmly grounded in deep academic thought.

This isn’t to say that law review articles are inherently worthless, unilluminating or limited to screeds about Kant.  Sure, there are some monumentally worthless articles from a practice point of view, but there are also some that provide truly novel and interesting ideas.

The problem is that they’re law review articles. They go on forever. They are so stuffed to the gills with jargon that they make a lawyer want to stick a needle in his eye. They demand so much time and effort to filter through the excess verbiage to get to the tiny gem of illumination that lawyers and judges, who don’t get paid to sit around and read turgid stuff, just can’t do it.

That doesn’t stop us from using law review articles to bolster our positions. Hell, we’ll use anything we can that serves to make our case or support an opinion. But don’t conflate the tail with the dog.  While law reviews may be mutts, they are not the dog in this fight.

That law review articles are conveniently used by everyone, CJ Roberts included, to add some heft to an opinion doesn’t mean they’re suddenly fascinating.  Just that they’re there and available to be used when it serves our purpose. We may not be as smart as scholars, but we’re not stupid enough not to use them when it suits us.