How the right-wing of the Supreme Court turned to academic scholarship to bolster its judicial muscle.
The Supreme Turnaround: Conservative Justices’ Surprising Embrace of Law Review Articles
In a twist that few legal scholars predicted, the conservative justices on the U.S. Supreme Court—once vocal skeptics of legal academia—are now citing law review articles at unprecedented rates. The finding is not just surprising; it’s statistically dramatic, and it signals a potentially transformative shift in how judicial reasoning and legal scholarship are converging.
Brent Newton, Practitioner in Residence at Penn State Dickinson Law, revisited his influential 2012 study on how frequently justices cite law reviews—and what he found turned his previous conclusions on their head. Once known for dismissing law reviews as too academic and irrelevant to real-world jurisprudence (Chief Justice Roberts famously mocked them as “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria”), the conservative wing of the Court has pivoted.
Between 2013 and 2024, conservative justices not only increased their overall citation rates, but also surpassed their liberal counterparts in nearly every category of judicial opinion—from majority rulings to dissents. What caused this intellectual about-face? Newton doesn’t draw definitive conclusions, but his data paints a compelling picture.
📚 The 2012 Baseline: Skepticism and Low Citation Rates
In Newton’s original 2012 study, which analyzed Supreme Court opinions from 2001 to 2011, he found that law review articles were cited in only 20.2% of opinions. More strikingly, liberal justices like Justices Breyer, Stevens, and Ginsburg were the ones leaning on legal scholarship, while conservatives like Thomas, Rehnquist, and Roberts largely ignored it.
The average? A mere 0.52 law review citations per opinion.
🔁 The Update: 2013–2024 Shows a Dramatic Reversal
Fast forward to 2024, and the numbers tell a very different story. Newton’s updated research—with assistance from student May Hennessy—analyzed 1,441 Supreme Court opinions spanning 11 terms. The headline: law review citations have doubled.
- 34% of all opinions from 2013–2024 cited at least one law review article (compared to 20.2% before)
- 1.0 citation per opinion on average (up from 0.52)
- 490 out of 1,441 opinions cited at least one law review article
And the conservative justices were the primary drivers of this increase:
- Conservative justices accounted for 72.5% of all citations
- Liberal justices accounted for just 27.5%
This is a near-complete inversion of the previous trend.
🔍 Opinion Breakdown: Where and How Citations Are Appearing
Majority/Plurality Opinions:
- 27.6% included citations
- Conservatives made 73.2% of those citations
Concurring Opinions:
- 32.5% cited law reviews
- 88.5% of citations came from conservatives
Concurring-in-Judgment:
- 40.5% cited law reviews
- A staggering 93.6% from conservatives
Dissenting Opinions:
- 42.8% cited law reviews
- Conservatives: 59%, Liberals: 41%
🧠 Case Study: Justice Thomas’s Intellectual Evolution
Perhaps the most dramatic shift occurred with Justice Clarence Thomas. From 2001–2011, only 13.3% of his opinions cited a law review, with an average of 0.32 citations per opinion.
From 2013–2024? That jumped to:
- 43.9% of opinions citing law reviews
- An average of 1.28 citations per opinion—the highest of any justice
Justice Alito also showed an uptick:
- From 0.51 citations per opinion to 1.02, with 28.9% of his opinions now referencing scholarship.
🤔 Why the Change? Two Theories
Newton offers two plausible explanations for the shift:
- Rise of Conservative Legal Scholars:
As more conservative legal minds have entered academia, including former clerks of these justices, it’s possible that the scholarship now better aligns with their judicial philosophies. - Strategic Use in Overruling Precedent:
Law review articles offer doctrinal ammunition when challenging or overturning precedent—a trend that has become more common with the Court’s conservative supermajority.
Both theories suggest a deeper integration of legal academia with judicial activism—especially from the right.
📌 What This Means for Lawyers, Academics & Law Students
This shift is more than academic trivia—it suggests a growing strategic value in legal scholarship, particularly conservative-oriented publications. For lawyers who argue before the Supreme Court or file amicus briefs, this means law review articles may carry greater persuasive weight than in previous decades.
For legal academics, particularly those producing conservative or originalist scholarship, this could be a golden age of influence.
And for students? Law reviews might not be as “dead” as some assume. In fact, they’re suddenly more relevant than ever.
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