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

23 Pages Posted: 10 Apr 2018 Last revised: 8 Aug 2018

Jonathan Feingold

BruinX; UCLA Equity, Diversity and Inclusion

Evelyn Carter

University of California, Los Angeles (UCLA)

Date Written: March 23, 2018

Abstract

In McCleskey v. Kemp, the Supreme Court rendered statistical evidence of racial disparities doctrinally irrelevant to a criminal defendant’s equal protection claim. Fifteen years later in Grutter v. Bollinger, Chief Justice Rehnquist—part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School had unconstitutionally discriminated against White applicants. This facially inconsistent treatment of statistical data invites the following inquiry: Why do judges (including Supreme Court Justices) rely on social science in some cases, yet reject it in others? We suggest that one answer lies at the intersection 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 overvalue “evidence” that rationalizes existing racial disparities and legitimizes 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). 112 Northwestern University Law Review 1689 (2018) (online essay). 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

Register to save articles to
your library

Register

Paper statistics

Downloads
52
rank
354,582
Abstract Views
261
PlumX