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.     

Social science in Supreme Court criminal cases and briefs

This article describes citations of social science research evidence in 200 criminal cases decided by the Supreme Court and in the briefs filed by the parties and amici curiae in these cases. It also examines the uses of social science authorities in samples of Supreme Court exclusionary rule and jury decisionmaking cases, and accompanying briefs. The correspondence between the social science references cited in the decisions and the briefs is used as one measure of the brief-writers' contributions to the Court's use of social science materials, and related contributions of the brief-writers are explored, as well. The justices appeared to locate the majority of social science references cited in their opinions without assistance from the briefs, and thus also presumably attempted to evaluate the research evidence on their own. Individuals and organizations with scientific expertise rarely filed amicus briefs in these cases, which may help explain why the Court so frequently was without assistance in locating or examining research evidence. It is suggested that the appellate judiciary's informed use of social science materials would be promoted if more social scientists, and their professional organizations, participated as amici curiae in cases presenting social fact issues within their competence.     

The Supreme Court and the Social Conception of Abortion

Skeptics of Supreme Court power have pointed to abortion policy as an example of surprising limits on the justices' power to change society. I argue, however, that the Court's ruling in Roe v. Wade played a critical role in transforming how Americans think and talk about abortion. I develop an account of the development of the social conception of abortion from a critical reading of twentieth century American journalism and then test some predictions of that account through the use of quantitative content analyses. I conclude by discussing some implications for the study of judicial politics and public constitutionalism.     

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.     

Social and social scientific perspectives in judicial interpretations of the constitution

It has been traditional to demarcateMuller v. Oregon as the first Supreme Court case to benefit from a social science perspective andBrown v. Board of Education of Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions,Dred Scott v. Sandford andPlessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article.     

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.     

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.     

Al Rawi,Tariq, and the Future of Closed Material Procedures and Special Advocates

This note considers the impact of the Supreme Court's decisions in Al Rawi v The Security Service and Home Office v Tariq on the use of closed material procedures and special advocates. The government's subsequent Justice and Security Green Paper is also discussed.     

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.     

The non-discrimination principle and American higher education: judicial failure to recognize the present effects of past discrimination

This article suggests that any approach to the issue of access to higher education in the United Kingdom not view the approach of the United States in the recent University of Michigan cases as providing appropriate guidance. It is the author's assertion that the United States Supreme Court has failed to recognize the present effects of a long history of deliberate racial segregation of higher education in America and the affirmative duty of public higher education to remedy the effects of America's unique system of racial segregation. Specifically, the Supreme Court's jurisprudence has abandoned the interests of the victims of a judicially sanctioned exclusion of African-Americans from public higher education during most of the 20th Century, and has instead supported equal access only to the extent that it furthers the university's own interests in so-called ‘diversity’. This disregard for the history of American racial segregation is inconsistent with the Constitutional principles announced in Brown v. Board of Education and the federal judicial decisions which secured and advanced the mandate for racial equality announced in Brown v. Board.     

Do Plaintiffs in CERCLA § 113 Contribution Actions Need to Prove Consistency with the National Contingency Plan?

This article discusses whether the claimant in a contribution action brought under section 113 of Comprehensive Environmental Response, Compensation, and Liability Act needs to prove that the costs were incurred in a manner that was consistent with the National Contingency Plan (NCP). This article examines the recent case law as well as the Supreme Court decisions that address the relationship between sections 107 and 113 and concludes that although the recent case law suggests that NCP is a requirement, the Supreme Court's analysis of the relationship between sections 107 and 113 in United States v. Atlantic Research Corp. may undermine the basis for that conclusion.     

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.     

Critical Mass for Affirmative Action: Dispersing the Critical Cloud

The concept of critical mass has been invoked by social scientists and the Supreme Court in affirmative action decisions as a solution to problems related to underrepresentation of minority students in institutions of higher education. Little distinction is made by scholars between the Court's use of critical mass as a metaphor and its application in research as a mathematical concept. I use Agent‐Based Modeling—a simulation technique in which systems are modeled through repetitive interaction of autonomous decision‐making “agents” to observe the complex dynamics that emerge from interaction—to investigate the Supreme Court's conception of the relationship between student‐body composition and student isolation and stereotyping. Findings demonstrate that the relationship between student body representation and the educational outcomes of interest as detailed by the Court, specifically minority students' feeling of isolation and majority students' retention of negative stereotypes, does not exhibit a specific threshold or tipping point as we would expect from a system that has a critical mass at which sudden and sustainable change in the state of the system occurs. Simulations of student interactions show there is not one definable threshold or critical mass of minority students that achieves educational goals of reducing either the isolation felt by minority students or the negative stereotypes held by majority students about their minority peers. Instead, greater minority representation is consistently associated with better outcomes for students in all contexts.     

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.     

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.     

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.     

The triumph of vengeance over retribution: the United States Supreme Court and the death penalty

In this article the author uses a review of Welsh S. White'sThe Death Penalty in the Nineties as a framework for analyzing recent trends in the United States Supreme Court's death penalty jurisprudence. Since 1976 the Supreme Court has upheld the constitutionality of capital punishment at least in part on the notion that the death penalty serves the useful social purpose of retribution. This article, however, contends that it is imperative to distinguish between retribution and vengeance as rationales for criminal punishment. Modern retributive theory calls for punishments to be guided by considerations of proportionality, fairness, and equality. Vengeance-based punishments, on the other hand, are aimed at satisfying the victim's and society's desire for retaliation and are not limited by the retributive principle that punishment must be proportionate to the severity of the crime and the moral blameworthiness of the offender. The article analyzes recent Supreme Court decisions that are not examined inThe Death Penalty in the Nineties-decisions that allow the introduction of victim-impact evidence into capital sentencing proceedings and permit the death penalty to be imposed on 16-year-old offenders, mentally retarded defendants, and those who neither kill nor intend to kill. These decisions, it is argued, demonstrate that the contemporary Court has bestowed judicial approval on vengeance as an acceptable justification for capital punishment.     

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.     

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.     

Shifting the Metaphor: Examining Discursive Influences on the Supreme Court's Use of the Marketplace Metaphor in Twenty-First-Century Free Expression Cases

Justices on the Supreme Court of the United States have employed the marketplace-of-ideas metaphor to communicate how they understand freedom of expression for nearly a century. The meanings behind metaphors, however, are not static. This article examines whether justices’ references to the metaphor in twenty-first-century cases remain primarily tied to the original meaning – one related to the Enlightenment ideas at the heart of Justice Oliver Wendell Holmes's first use of the metaphor in 1919 – or if the meaning has shifted to represent more discourse-based understandings of communication in democratic society, such as those put forth by John Dewey and Jürgen Habermas. This article, through an analysis of twenty-first century Supreme Court decisions that discussed the marketplace metaphor, identifies evidence of a shift in the Court's understanding of the foundational theoretical concepts behind the meaning of the metaphor.