Private: Law Prof. Ifill Challenges Chief Justice Roberts’ Take on Academic Scholarship

Chief Justice John Roberts Jr. at the recent Fourth Circuit Judicial Conference grabbed a few relatively easy applause lines – by knocking the work of law professors.

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who 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.”

Roberts added that he doesn’t necessarily think anything is wrong with such an approach, albeit a relatively irrelevant one. “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level,” Roberts continued, “that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”

Perhaps not surprisingly a law professor, who not only writes law review articles, but is a frequent blogger, has taken umbrage with the chief justice’s commentary on the usefulness of legal scholarship.

In a piece posted at Concurring Opinions, University of Maryland law school professor Sherrilyn Ifill writes, “Legal scholars will on occasion indeed take up Kant (and there’s no shame in that), but more often than not, published law review articles offer muscular critiques on contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.”

Ifill, then provides a string of cites to law review articles that she says would provide great help to judges, if they would read them.

For example Ifill notes that her 2002 Maryland Law Review article, “Do Appearances Matter?: Judicial Impartiality and the Supreme Court in Bush v. Gore,” provides “a detailed prescription of how Supreme Court recusal practice should be reformed and codified – an area of Supreme Court practice desperately in need of reform and a matter much in the news these days in light of some of the activities of Justice Clarence Thomas and his wife, Ginni.”

Ifill said that Roberts apparently intended to “shame academics with what he regards as our own scholarly irrelevance. But the shame is really on the Chief Justice of the United States, who demonstrated how out of touch he is with the current world of legal scholarship and the potential contribution of legal scholars to the work of judges.”

The chief justice’s entire remarks before the Fourth Circuit conference are available from C-SPAN, by clicking on image.

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