The Supreme Court sails on the ship called Precedent. The history of the law is part of its chemical make-up. In jurisprudence, that history consists of decisions already made; and new decisions are made and measured according to these precedents, the existing case law. It is therefore often presumed then that rich coffers of legal precedent are the sole source of reference for legal decisions. But it turns out that the “real world” intrudes upon the sanctuary of legal rumination and decision–in fact rather often even a work of fiction sneaks in to the courtroom. (Indeed, Justice Scalia has referenced Homer, Dante and Lord of the Flies in a single paragraph in rendering a Supreme Court decision.)
Nonlegal citations both exist and proliferate within contemporary judicial opinions. This realization could — indeed, it should — lead both lay-readers of these opinions and practitioners to ask a fundamental question: What are these nonlegal citations doing in a judicial opinion? In an article I recently published in the Whittier Law Review, I aimed to answer that question, by analyzing the number and usage of nonlegal citations from the Supreme Court’s 2010-2011 Term. Using my findings, as well as the information collected by earlier scholars studying similar material, I concluded that Supreme Court Justices often attempt to use nonlegal sources to move the law away from its traditional home into new ports of call. By providing a place for nonlegal material in the legal world, Supreme Court Justices both hope to move the law, and (possibly as an unintended consequence) canonize the nonlegal. While this trend is not new, it is occurring with somewhat greater regularity than in the past. Comparing the Supreme Court’s use of nonlegal sources in 2010-2011 with their use of nonlegal sources in previous years shows both an overall increase in the amount of legal citations, and – what I think is possibly a more interesting trend – a very large increase in the number of nonacademic nonlegal citations.
– Bezalel Stern is a lawyer and writer. His essays and reviews have appeared in McSweeney’s, The Millions, and The Rumpus, among others. He is currently a fellow at the Center for Fiction.