Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science

Jonathan P. Feingold & Evelyn R. Carter, Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science, 112 Nw. U. L. Rev. Online 236 (2018)

23 Pages Posted: 10 Apr 2018 Last revised: 21 Jun 2018

Jonathan Feingold

BruinX; UCLA Equity, Diversity and Inclusion

Evelyn Carter

University of California, Los Angeles (UCLA)

Date Written: March 23, 2018

Abstract

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice Rehnquist — himself part of the McCleskey majority — invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against White applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory and empirical scholarship on motivated social cognition. This “eCRT” lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to over-value “evidence” that rationalizes existing racial disparities and, as a result, author legal opinions that re-instantiate and legitimize the status quo.

Keywords: equal protection clause, social science, empirical scholarship, critical race theory, fourteenth amendment

Suggested Citation

Feingold, Jonathan and Carter, Evelyn, Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science (March 23, 2018). Jonathan P. Feingold & Evelyn R. Carter, Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science, 112 Nw. U. L. Rev. Online 236 (2018). Available at SSRN: https://ssrn.com/abstract=3147999

Jonathan Feingold (Contact Author)

BruinX; UCLA Equity, Diversity and Inclusion ( email )

2255 Murphy Hall
Box 951405
Los Angeles, CA CA 90095
United States
3102067411 (Phone)

HOME PAGE: http://equity.ucla.edu

Evelyn Carter

University of California, Los Angeles (UCLA) ( email )

405 Hilgard Avenue
Box 951361
Los Angeles, CA 90095
United States

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