Justice Amy Coney Barrett’s concurrence this past term in Hunter v. United States, a case about whether federal criminal defendants’ appellate waivers could be enforced if a miscarriage of justice would result, drew commentary from some legal circles not only for its substance (which was rather technical: Barrett wrote that the court’s ruling should be based on “longstanding waiver principles” rather than “narrow, discretionary rules” created from the court’s “inherent, supervisory authority over inferior federal courts”) but for its rare self-citations (a.k.a. “auto-citations”) from Barrett’s days as a law professor.
“Like Justice Thomas, I am skeptical that the Supreme Court possesses an inherent, supervisory authority over inferior federal courts. See A. Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324 (2006),” Barrett noted in her two-page concurrence. “At the same time, I have distinguished exercises of such authority from the development of procedural common law. See A. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 883–884 (2008).”
As Josh Blackman wrote: “I cannot recall any Justice so clearly stating that her judicial opinion was equivalent with her scholarly opinion–that was until I read Justice Barrett’s concurrence in Hunter v. United States. Barrett cites two of her own law review articles as support for her judicial opinion.” Adam Liptak likewise noted (referencing Blackman’s post) that Barrett “cited two of her own law review articles, from 2006 and 2008, to explain why she had come to conclusions about the relationship between the Supreme Court and lower courts.”
But Barrett is not the only justice on the Roberts court to have done so – as Liptak flagged, a 2021 law review article on the topic by Joel Heller identified past auto-citations by Justices Elena Kagan, Brett Kavanaugh, and Clarence Thomas. Justices Stephen Breyer, Ruth Bader Ginsburg, and Antonin Scalia also auto-cited their own work. All auto-citations appeared in concurrences or dissents – potentially because “[in a majority opinion] the justice is speaking more for herself or himself than for the Court,” Heller noted.
For example, in Seila Law LLC v. CFPB, which held that restrictions on the removal of the director of the Consumer Financial Protection Bureau violated the separation of powers, Kagan filed an opinion concurring in part and dissenting in part. In this, she cited her 2001 Harvard Law Review article twice, first in a footnote reading “In the academic literature, compare, e. g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies) …” followed by an in-text mention: “The President’s engagement, some people say, can disrupt bureaucratic stagnation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331-2346 (2001).”
Other justices cited to their own circuit opinions. Kavanaugh, for example, did so three times in 2020, per Blackman. And this is nothing new: Also per Blackman, Justice John Paul Stevens had 14 auto-citations between 1980 and 1995 to his U.S. Court of Appeals for the 7th Circuit opinions, while Justice Anthony Kennedy in 2011 cited to one of his U.S. Court of Appeals for the 9th Circuit opinions.
While the prospect of an auto-citation is itself enough to interest SCOTUS nerds, also of note are the potential motivations of a justice citing themselves or a colleague. Some proposed reasons: “Sometimes [the auto-citations] appear in areas where the authoring justice has particular expertise, while other times they seem to signal interest in certain arguments or express a personal judicial philosophy. … It is also a hint to arguments [the justice] would find compelling—because [he or she] made them” in the past. Another reason could be plain old consistency; as Liptak wrote in 2022 in a column about citing one’s own precedent, “Supreme Court justices, like most people, like to appear to be consistent. No one wants to be thought to be a flip-flopper, an opportunist or a hypocrite.”