SOCIAL SCIENCE RESEARCH AND CONSTITUTIONAL LAW

"Let us," roscoe pound urged in 1910, "look the facts of human conduct in the face. Let us look to economics and sociology and philosophy, and cease to assume that jurisprudence is self-sufficient. It is the work of lawyers," he continued, "to make the law in action conform to the law in the books, not by futile thunderings against popular lawlessness, nor eloquent exhortations to obedience to the written law, but by making law in the books such that law in action can conform to it." Pound's exhortation is an early expression of the Legal Realist view of the role of social science in law, including constitutional law, a view that is still significant today.

legal realism attacked the classical conception of law with its assumptions about the independent and objective movement from preexisting rights to decisions in specific cases. In so doing, Realists opened the way for a vision of law, including constitutional law, as policy informed by facts about the world. They saw the twentieth century as a period of knowledge explosion and in the emerging social sciences the triumph of rationality over tradition, inquiry over faith, and the human mind over its environment. By using the questions and methods of science to provide factual material and to assess the consequences of legal decisions, Realists such as karl llewellyn claimed that an understanding of what law could do would help in establishing what law should do. Legal Realism thus initiated a dialogue between law and social science by staking a claim for the importance of phenomenon beyond legal categories and by attacking what Realists saw as the self-centered arrogance of legal decision makers.

Yet the origins of social science in constitutional litigation are often traced back, before the Realists, to the brandeis brief, submitted in 1907 as part of the litigation of muller v. oregon (1908), a case involving the constitutionality of maximum-hours laws for women. louis d. brandeis provided factual evidence, culled from already existing materials, that women workers had special health needs such that legislating special protection might be deemed reasonable. Judged by today's standards his brief hardly qualifies as social science evidence. However, the Supreme Court's explicit citation of it suggested that there might be a receptive audience for systematic fact-gathering efforts in subsequent cases.

A close second to the Brandeis Brief as the best known example of the role of social science in constitutional law is the famous doll study by psychologist Kenneth Clark. Clark did an experiment with young black children in the South, giving them a drawing of two otherwise identical dolls, except that one of the dolls was white, the other black. The children were asked which dolls they would like to play with, which looked like themselves, and which were nice and which were bad. Most of the children liked the white doll best and called the black doll bad. This study, along with several others, was cited by the Court in brown v. board of education (1954) in support of the proposition that " '[s]egregation of white and colored children in public schools has a detrimental effect upon colored children.' " The Court further observed that "whatever may have been the extent of psychological knowledge at the time of plessy v. ferguson [(1896), this finding is amply supported by modern authority."

Over the last several decades, research based on such techniques as experiments, public opinion surveys, and quantitative analysis of archival data has multiplied, such that today it is common to see citations to social science research decorating the footnotes of court opinions dealing with a wide variety of constitutional issues including those having to do with the fourteenth amendment guarantee of equal protection of the laws, Morgan v. Kerrigan (1976); the constitutionality of regulations of obscenity, Paris Adult Theatre I v. Slaton (1973); whether the Sixth Amendment mandates jury size, Williams v. Florida (1970); and whether capital punishment violates the Eighth Amendment prohibition of cruel and unusual punishment, Gregg v. Georgia (1976). While the increasingly prevalent citation of social science seems to be fulfilling the Realist aspiration to tether law more completely to the world through the work of social scientists, social science seldom compels particular factual conclusions or legal results. At best, social science identifies contingencies, establishes probabilities, or points out tendencies.

Moreover, courts rarely commission their own research. The work presented to them is sometimes sponsored directly by parties to constitutional litigation and, where it is not directly sponsored, it is always mobilized in the service of advocacy. For nearly every social science study establishing some probability or tendency, there are others qualifying, disputing, or contradicting its conclusions. The persuasiveness of social science research ultimately depends on the persuasiveness of the narratives in which they are embedded and their reception in the prevailing political climate. As a result, courts can easily quarrel with or ignore research with which they disagree.

A particularly powerful demonstration of the ability of courts to sidestep the results of even the best social science research is provided by the case of mccleskey v. kemp (1987). There the Court was presented with the Baldus study, a scientifically rigorous analysis based on advanced multiple regression techniques showing that, in death penalty cases, the best predictor of whether a murderer would receive a death rather than a life sentence was the race of his victim. This research showed that when all other factors were taken into account, murderers of white victims were four times more likely to receive a death sentence than murderers of black victims. The plaintiff contended that this finding raised serious equal protection and Eighth Amendment issues.

The Baldus study, while carried out with the encouragement of the naacp legal defense and education fund, was directly responsive to the concerns of Justices in earlier death penalty cases who complained, as Chief Justice warren burger did in Furman v. Georgia (1972), that there was "no empirical basis for concluding that juries have generally failed to discharge the responsibilities … of choosing between life and death in individual cases according to the dictates of community values." In addition, the study was designed to address critiques made by Justices of earlier studies of racial disparities in death penalty cases involving rape, critiques calling them "interesting and provocative" but insufficiently comprehensive to serve as proof of racial discrimination. Yet even after these efforts the Baldus research did not persuade the Court. The Court assumed the validity of the Baldus research; nonetheless, it found that the study did not show that racial considerations "actually" enter into any particular sentencing decisions and that "At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent discrepancies in sentencing are an inevitable part of our criminal justice system."

Despite the Baldus study's fate, it marked the high point of one part of the Realist project of using social science to produce factual predicates for constitutional decisions. But there was, and remains, a second part of the Realist mandate for social science; namely, to measure or assess the impact of constitutional decisions once they are made in the hope of producing results that can be used to reassess or revise those decisions where necessary. Here social science identifies gaps, of the kind that Pound fore-saw, between the law on the books and the law in action. There are now literally hundreds of social science studies that focus on Court decisions like Brown or miranda v. arizona (1966) and seek, in the words of Abraham Blumberg, "to ascertain the validity and viability of … (those) decisions which may rest on wholly erroneous assumptions about the contextual realities of social structure." Occasionally, though not very often, that work finds its way into cases in which courts are asked to expand, amend, revise, or reverse earlier decisions.

At the end of the twentieth century, the Realist vision of the roles of social science in constitutional law is as controversial as it has ever been. For some it continues to mark the path of an enlightened engagement between academic knowledge and legal policy. As Judge Richard Posner recently said, echoing the Legal Realist exhortation of more than a half-century ago, "I would like to see the legal professoriat redirect its research and teaching efforts toward fuller participation in the enterprise of social science, and by doing this make social science a better aid to judges' understanding of the social problems that get thrust at them in the form of constitutional issues." Others reject the hope of the Realists. They claim that it is wedded to an unduly positivist and narrow view of social science and that it limits social science to a politically reformist role. Additionally, what counts as social science knowledge is itself "up for grabs," with positivism under attack and with new epistemologies pressing themselves forward.

Many now seek a broader role for social knowledge. They believe that social research should be directed less toward charting the vicissitudes of particular constitutional decisions and more toward understanding the pervasive role of constitutional and other bodies of law in legitimating political power, maintaining social inequality, and constituting the taken-for-granted world. For them social science should do more than provide data for, or study the fate of, constitutional decisions by courts assumed to stand outside society. It should instead help us understand constitutional law not, as the Realists did, as something removed from social life, occasionally intervening to try to correct injustices, but as inseparable from and fused with all social relations and practices.

Austin Sarat
(2000)

Bibliography

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