Recommended Citation
Jeremiah Chin, Modern Authorities from Brandies to Brnovich: For Jurists Who Have Considered Social Science / When Doctrine Was Not Enough, 13 ALA. C.R. & C.L. L. REV. 265 (2022), https://digitalcommons.law.uw.edu/faculty-articles/1092
Publication Title
Alabama Civil Rights & Civil Liberties Law Review
Keywords
U.S. Supreme Court, racial discrimination, social science data
Document Type
Article
Abstract
While the Supreme Court is the final authority on the Constitution, its interpretations increasingly turn to outside, non-legal sources to authoritatively support its conclusions of law and fact. Particularly in cases involving racial discrimination, the Court relies on social science data presented by the trial record, amicus curiae, or its own research. However, the Court lacks explicit rules or methods of analysis for these data. To remedy this gap in analysis, this article proposes a critical methodology for analyzing the use of social science data in cases involving race. By outlining a historiography of the Court's invocation of extrinsic data, this paper identifies patterns and practices implicit in the way the Justices frame their analyses. Beginning with the Brandeis briefs of the early 20th century, through the infamous footnote 11 in Brown citing to sociologists and psychologists, to the dismissal of statistical disparities in sentencing in McCleskey, up to Justice Alito's recent flippant dismissal of statistical significance in Brnovich, this paper identifies how the court defines the legal scope of analysis on race. Tracing the connections between these cases suggests a contextual methodology, drawing on critical race theory and critical legal frameworks, to analyze both case law and social science data. Situating law in its social contexts through rigorous methodological scrutiny provides a consistent framework for writing, understanding, and practicing law.
Included in
Civil Rights and Discrimination Commons, Law and Race Commons, Supreme Court of the United States Commons