Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

Content and Viewpoint Discrimination: Malleable Terms Beget Malleable Doctrine

Recent scholarship has demonstrated that the Supreme Court of the United States has defined poorly and inconsistently applied two core First Amendment concepts-content and viewpoint discrimination. This article systematically explores the malleability of the Court's speech discrimination principles. Using data from The Supreme Court Compendium that categorize the ideological voting behavior of justices on the Court, the article studies decisions in three socially divisive areas of law in which content and viewpoint discrimination have been central issues of significant cases. Analysis shows that the Court's weak definitions and inconsistent applications leave the content and viewpoint concepts especially ripe for manipulation. The article concludes, therefore, by suggesting a new method of analysis that would offer more consistency.     

Dolly and Alice

The opinion of the United States Court of Appeals for the Federal Circuit, In re Roslin Institute, rejecting patent claims to mammals cloned from somatic cells, was rendered about a month before the United States Supreme Court''s decision in Alice Corp. v. CLS Bank International. The Alice opinion explicitly sets out the standard for determining whether an invention falls within statutory patentable subject matter. Thus one is thus left to wonder what the Roslin opinion might have looked like had it been decided only a few weeks later, after the Alice decision was published, with the benefit of the Supreme Court''s further direction on patentable subject matter. In this essay I explore whether in hindsight the Alice standard might have dictated a different outcome in Roslin, suggesting how the two-part test articulated by the Supreme Court in Alice might apply to a ‘products of nature’ analysis for cloned mammals. Drawing on that analysis, I then use the Roslin case as a vehicle to highlight certain issues with the Supreme Court''s current subject matter jurisprudence as applied to biotechnology. By juxtaposing Dolly with Alice, it becomes clear that the Supreme Court has revivified a number of dormant biotechnology patent problems in the guise of subject matter analysis.     

From the Law Reviews

Although Warth v. Seldin is carefully cast in procedural terms, its significance is substantive. The real meaning of the decision is that the U.S. Supreme Court is not prepared to read into the federal constitution a limitation on suburban zoning power like that which the New Jersey Supreme Court read into the state constitution in Mt. Laurel.¹ Warth is, thus, the Court's most recent rebuff of the varied efforts to use the fourteenth amendment as a weapon against the inegalitarian consequences of metropolitan fragmentation.¹ Those who see in the vague language of that amendment a remedy for every social ill are sure to condemn the Court's passivity in the face of that malady. Yet, there is, as Paul Freund once wrote, “a morality of morality.” The mere existence of a social ill does not authorize the courts to prescribe the cure.     

Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal's decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal's decision arguably paved the way for further data protection/privacy claims to be brought as opt-out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court's reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re-enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.     

From Hyderabad to Harvard: how US law schools make it worthwhile to clerk on India's Supreme Court

Since the 1990s, judges of the Supreme Court of India have hired law clerks to help them perform some of their routine tasks. However, while clerkships on the U.S. Supreme Court are considered very prestigious and are extensively written about, clerkships on India's Supreme Court are considered to be of significantly lower value by the local legal profession and teaching market in India. Instead, ironically, clerkships on the Supreme Court of India are often pursued by students interested in getting an advanced law degree (usually an LL.M.) at a U.S. law school. Relying on interviews conducted with law clerks and interns who have served on the Supreme Court of India, and using India as a case study, this paper argues that ambitious Indian law students are adopting strategies to “Americanize” themselves in order to culturally arbitrage U.S. law schools' misunderstandings of the global legal profession.     

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.     

Koushal v Naz: Judges Vote to Recriminalise Homosexuality

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis.     

Supreme Court Ruling Creates More Standing Room in the Already Heated Global Greenhouse Gas Movement

This article reviews the recent April 2, 2007 Supreme Court decision in the Massachusetts v. EPA, a highly important case regarding greenhouse gases. The case centered on the Court's review of EPA's denial of a petition to regulate greenhouse gas emissions from new motor vehicles. The Court required EPA to reconsider its denial. The Court found that. 1) the petitioners have standing to challenge EPA's denial of their petition; 2) the Court has the authority to review the denial of the petition; and 3) the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles. This article looks specifically at the Court's analysis of standing and jurisdiction by Justice Stevens, who wrote the Court's majority opinion, and two dissenting opinions by Justices Roberts and Scalia. Most interesting is how the closely divided Justices (5 to 4 decision) viewed, very differently, the issues regarding standing, the evidence that emissions from new motor vehicles are causing global warming and harm to Massachusetts, and the agency's judgment in denying the petition. Lastly, the article speculates on the impact of the decision and the current activities taking place at the state and regulated community level involving future regulation, litigation, and opportunities by various companies and coalitions to reduce greenhouse gas emissions. The article then presents five broad areas where companies that emit greenhouse gases should need to maintain or increase awareness to better position themselves in the global greenhouse gas movement.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations

In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so‐called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.     

Justices,Political Actors,or Both: An Exploration of the Brandenburg Line Through the Regime Theory Lens

Regime theory seeks to explain decisions by the Supreme Court of the United States by noting that justices tend to decide cases in ways that align with the prevailing political ideology. The theory emerged from political science literature and has not been explored regarding communication law. This article tests regime theory against the progression of seven Supreme Court precedents that led to the threatening speech test established in Brandenburg v. Ohio. The test is traditionally viewed as the fruit of about a half-century of deliberate judicial evolution. The analysis found regime theory helped explain the Court's progression and decisions in this line of cases, but contained some notable weaknesses.     

Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co.

Since 1980, the Supreme Court has used a complex form of intermediate constitutional scrutiny-the Central Hudson analysis-when government regulations of commercial speech are challenged on First Amendment grounds. In Lorillard Tobacco Co. v. Reilly, the Court used this analysis for the first time to test the constitutionality of government restrictions on tobacco advertising. This article reviews the Court's commercial speech doctrine including previous treatment of governmental attempts to restrict harmful product advertising. The article then provides an overview of the national regulatory framework for tobacco advertising and analyzes the Supreme Court's 2001 opinion in Lorillard Tobacco. The article then explores the impact of the case on the Court's commercial speech doctrine and in subsequent lower court opinions.     

Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt

In Whole Woman's Health v Hellerstedt the Supreme Court of the United States passed down its most important decision on abortion for just under a decade. By a majority of 5‐3, the Court ruled that two provisions in a Texas law regulating abortion on grounds of women's health were constitutionally invalid, placing a ‘substantial obstacle’ in the way of women seeking to exercise their right to abortion. This comment delineates the key ways in which the Court's application of the standard of constitutional review under Planned Parenthood v Casey (1992) to the Texas provisions marks a landmark development for the protection of the constitutional right to abortion established in Roe v Wade, not the least by making clear that state abortion regulations which cite ‘women's health’ justifications should not pass constitutional review where those justifications lack a credible factual basis.     

An Analysis of Policy‐Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy‐based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.     

Beyond “Sic Utere …” to the Regional General Welfare

Since the lower court opinions in Oakwood at Madison and Mt. Laurel, a definitive decision has been awaited from the New Jersey Supreme Court dealing with the issues of exclusion in housing and land use regulations. It was also expected that Justice Hall, author of the well-known Vickers' dissent, would have the chance to lead the majority in its decision, Though Madison reached the court first, it was fraught with delays and unusual circumstances, placing it in line behind Mt. Laurel. Thus, Mt. Laurel emerged as the vehicle for this court's important restatement of the law of municipal land use control. Announced March 24, 1975, the New Jersey Supreme Court's decision in Mt. Laurel was indeed written by Justice Hall—a valedictory of sorts just before his retirement from the bench in April.     

The Arendtian Dread: Courts with Power

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue that Arendt's characterization of authority as requiring “neither coercion nor persuasion” means that the Court's source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court's authority. In Arendt's mind, such an understanding means that the Court has become the seat of power. The corruption of the Court's authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow.     

Social science in supreme court death penalty cases: Citation practices and their implications

This study examines the use of evidence based on social science research in Supreme Court capital punishment cases decided between 1963 and 1985. These years mark the beginning of the Court's modern decisions regarding the death penalty and extend to the approximate midpoint in this body of jurisprudence. The frequency and the major correlates of social science research citations in the Supreme Court's death penalty cases are described, and these findings are contrasted with the justices' use of social science evidence in other types of criminal cases. The justices have used social science materials relatively often in capital punishment cases, although it does not necessarily follow that social science findings have been important to the decision of these cases. The results of this research are discussed, along with other issues relevant to the judicial use of research evidence based on social science.     

Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court

This article focuses on the relationship between the United Kingdom Supreme Court and Northern Ireland over the course of a constitutionally significant period of time, namely the first decade of the Court's existence. It does this by exploring what difference the Court has made to the law of Northern Ireland, what significance the cases from Northern Ireland have had for the law in other parts of the United Kingdom, and what part has been played in the Court's work by the sole Justice from Northern Ireland, Lord Kerr of Tonaghmore, and by the Attorney General for Northern Ireland, John Larkin QC. It concludes that the Court has established itself as an indispensable component of the legal system of Northern Ireland.