Wednesday, April 03, 2013

Social Science and Equal Protection

By Mike Dorf

My latest Verdict column discusses the cert grant in the Michigan Proposal 2 case.  The Sixth Circuit invalidated Proposal 2--which imposes a state constitutional ban on govt affirmative action.  The Sixth Circuit relied on the authority of two SCOTUS cases: Hunter v. Erickson and Washington v. Seattle School Dist. No. 1.  Those cases held that even when some race-related law or program is not constitutionally required, a change in state law that makes it more difficult for racial minorities to obtain such a race-related law or program is unconstitutional.  I explain why I think the SCOTUS is likely both to reverse the Sixth Circuit and to narrow or even overrule the Hunter/Seattle principle.  In the course of doing so, I call attention to a number of related issues in cases currently pending before the Court--including last week's SSM oral arguments.

In this post, I want to draw a different connection between race-based civil rights cases and the SSM oral arguments.  During the Prop 8 case, several Justices and Charles Cooper, the attorney for the sponsors of Prop 8, suggested that the Supreme Court at least ought to wait before finding a right to SSM because we don't yet have sufficient data to evaluate its effects.  Justice Scalia concentrated this concern on adoption of children by same-sex couples but Cooper and other Justices suggested that the concern applies more broadly.

The idea that the Court ought to wait for the judgment of social science is at least a little curious coming from the conservatives.  Recall that in Brown v. Board of Education, the Court partly based its ruling on the conclusion that racial segregation stigmatizes African American schoolchildren, which in turn undermines their education.  That further conclusion was based on studies--cited in footnote 11 of the Court's opinion--that sought to measure the harmful effect of segregation.  The first authority cited was a study by Kenneth Clark involving self-images of African American children, as indicated through dolls.

There is an enormous literature on Brown's footnote 11, much of it critical.  The gist of the criticism was summed up nicely in a 2005 Cornell Law Review article by my colleague Michael Heise.  It consists of a technical critique that Clark's work was shoddy and a normative critique that says that the outcome in Brown should not have turned on such data.

The critique has not been confined to the academy.  In his passionate concurrence in (the 1995 version of) Missouri v. Jenkins, Justice Thomas first cited the technical critique (in his footnote 2) but then went on to argue that social science is simply irrelevant to applying equal protection analysis.  He wrote:
Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources—making blacks “feel” superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant to the question whether state actors have engaged in intentional discrimination—the critical inquiry for ascertaining violations of the Equal Protection Clause. The judiciary is fully competent to make independent determinations concerning the existence of state action without the unnecessary and misleading assistance of the social sciences.

It is possible to read that language as saying only what the last sentence literally says--that social science evidence is irrelevant to determining "the existence of state action."  However, the issue in Brown was not whether there was state action; of course there was.  Taken in context, Justice Thomas appears to be saying that the impact of intentional discrimination--as measured by social science or by any other means--is simply not relevant to whether there is an equal protection violation.  The question is whether such discrimination exists.  And that is indeed the point that is made overwhelmingly by those who offer the normative critique of the Brown Court's purported use of the Clark study.

But if that's true for race, why isn't it true for sexual orientation as well?  To be sure, there are apparently empirical questions that go into the determination of what level of scrutiny applies to laws that discriminate based on sexual orientation.  Have LGBT Americans suffered a history of discrimination? Do they lack political power? Is sexual orientation an immutable trait? The Court's case law makes these inquiries relevant to the threshold level-of-scrutiny question and it's hard to see why social science (or history, which may be deemed a kind of social science for these purposes) would be irrelevant to them.

However, the question of whether SSM is good or bad for children or good or bad for society more broadly is exactly the sort of question that Justice Thomas and the other critics of Brown footnote 11 ought to consider irrelevant.  Will they?


egarber said...

Waiting on social science also seems to muck up Scalia's brand of textualism, it appears to me. When it comes to the 8th Amendment, for example, Scalia adamantly avoids any assessment of modern standards, right? Why is this different?

pvineman1 said...

Waiting for social scientists to reach a consensus on issues that are inexorably linked to deeply ingrained moral beliefs is like waiting for the sun to rise in the west.

Rest assured, if the Court punts on the squarely presented EP issue in Windsor to wait for more evidence on the impact of SSM on society in general, or on children who are raised by SSC in particular, it will be waiting forever as opponents and proponents scour the country, checkbook in hand, in search of social scientists who will substantiate their conception of morality.

Hashim said...


I think you're confusing whether social science is *necessary* to *invalidate* a law (as in Brown) and whether it's a *permissible* basis for *upholding* the law (as in gay marriage).

In Brown, black students had a right to challenge school segregation simply due to the race-based exclusion, whether or not it psychologically harmed them. That's Thomas's point. But if the school had tried to *defend* based on an asserted compelling state interest that *integration harmed* students in some way, then presumably social science would have to be considered (unless the Ct held that the harm asserted wasn't a sufficiently compelling interest to justify race-based discrimination).

Likewise, for gay marriage, gays don't need to cite social science evidence to challenge the govt discrimination. But the govt can certainly defend the discrimination by arguing that it has a sufficiently significant state interest, as evidenced by social science.

pvineman1 said...

Hashim's point is well-taken. So the question becomes, what social science evidence has the government put forth (in any court) to defend the discrimination?

Hashim said...

It's hard to put forth social science evidence when gay marriage is so new. That's the defenders' whole point. Given the novelty of the practice and the uncertainty as to its effects, the Govt has a strong interest in retaining the traditional form of marriage rather than modifying a fundamental pillar of civil society and hoping for the best.

Michael C. Dorf said...


That's a creative/clever reading but Justice Thomas also endorses by citing the (pretty persuasive) shoddiness critique of the Clark work. That critique does not just say that Clark's own methods were shoddy (as they were) but that social science simply can't say anything definitive about the sorts of questions at issue. If that's true about the question of whether segregation is stigmatizing, which is at least a relatively contained question, it's even more true of the question of what will be the overall social effects of same-sex marriage. If that's the question, then I agree with pvineman1 that we'll never know the answer, at least not in the sense of having an overwhelming consensus.

Joe said...

"traditional form of marriage"


King Kane said...

I really hope Justice Kennedy can see how this male-female binary system oppresses both males and females. In Prop 8 argument, Mr. Cooper inadvertently brought that point by stating male's fertility as a reason to protect the "traditional" marriage. The implication is that "traditional" marriage is there to protect women and children from Johnny Appleseeds.

I understand it is difficult to write an opinion why opposite-sex only marriage is a form of sex discrimination, but so was segregation or anti-miscegenation laws. If there were equal population of blacks and whites with seemingly equal powers, it would be difficult to show why segregation/anti-miscegenation is unconstitutional, for there might not be perceivable "White Supremacy" or "Black Supremacy."

The answer is that these laws violate *individual* rights. Both in terms of due process and equal protection. So I am with Mr. Dorf, and Justice Thomas. These cases should be decided on its face (discrimination on the basis of sex) with appropriate level of scrutiny.

Discrimination on account of sexual orientation is inherently a discrimination on account of sex. I can't believe our federal courts are too incompetent to see what Hawaiian court saw 20+ years ago.

Paul Scott said...

I am definitely with Thomas, Dorf et. al. on this one. It is not even a matter of the work being shoddy. The word "science" in "social science" doe snot even mean "science;" it means "math" (or more specifically a very small subset of "math" - "statistics").

Among the sorts data analysis to which one can apply a non-probabilistic (almost all social "science" uses non-probabilistic statistical analysis) is a class of analysis called cross-sectional studies (every once in a while, a rare case of a "natural experiment" will come about, but - rare). Sometimes these are single study, sometimes these are studies of studies ("meta-studies"). What they almost never do is perform some sort of isolation and intervention (for obvious reasons, this is not really possible.) Without this, you can never show causation. Sure, you can make guesses, but the best you can ever do is demonstrate correlation.

Social "sciences" are then all further complicated in that trying to separate confounding factors from an incredibly complex system is almost impossible. This last bit is where most social "science" goes from being merely descriptive, to being terrible.

Models are developed, assumptions are made (see almost anything Neil has written about "the rational maximizer") and causation is suggested from a "study." Of course, the only meaningful test of any model is not whether it can boast a statistically significant correlation, but whether the model can, in fact, predict. These models are generally not testable, but in the rare cases where they are tested they invariably fail.

For my money, social "science" is meaningless to constitutional questions not only because it is bad in individual cases, but because even in consensus it is definitionally not capable of illuminating the subjects for which it claims to be relevant.

Andrew Hyman said...

The capacity of the human mind to twist and distort is limitless, and that applies to social science statistics as well as to the Constitution itself.

Take the equal protection argument against DOMA. This argument distorts the constitutional text in two ways. First, as in Bolling v. Sharpe, the Equal Protection Clause would be superfluous if the same principles were already embodied in substantive due process. Second, the equal protection argument disregards the phrasing of the Equal Protection Clause. Justice John Paul Stevens once said: “I emphasize the word ‘the’ as used in the term ‘the freedom of speech’ because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech.” Well, the Equal Protection Clause uses the word "the" in the same way that Stevens was talking about.

I have no objection against bogus social science evidence, if someone wants to rely on such evidence when they go into a voting booth. That way people with more sense can outnumber them. I hope SCOTUS lets that process play itself out.

pvineman1 said...

Try this social science experiment: Go to San Quentin and ask the 700 or so inmates on death row about their child rearing.

You know what you will find as the most deleterious factor in their formative years, regardless of whether they were raised by a married heterosexual couple, a single mother or father, a relative, a homosexual mother or father, or an adoptive parent: Alcohol abuse by one or more of the persons responsible for raising them.

Perhaps Congress should spend more time revoking tax breaks for Anheuser Busch and less time worrying about the harm to America's children that that the Edith Winsdor and Thea Spyer's of this world would cause if they were given a marriage license.

By the way, I know it is off topic, but if Prof. Dorf can revisit the issue of BLAG's Art. III standing it would be much appreciated.

The more I think about the SSM cases, and the Court's apparent desire not to jump into the contentious, evolving political fray prematurely, the more I am convinced that at least five justices will hold that Windsor is not justicable because BLAG lacks standing.

As Prof. Dorf pointed out in a prior post, that will open up a host of possibilities regarding future federal court litigation, the survival of DOMA (sections 3 & 2), and the pace of movement toward a constitutional right to SSM.

Michael C. Dorf said...

There has been some great blogging on the standing issues by Marty Lederman on SCOTUSblog. Here I'll just restate my conclusions with the skeleton of an argument: I think that the better case is for rather than against standing in both Perry and Windsor.

In Perry, the Calif S Ct has made clear that in the existing circumstances, an initiative sponsors have standing to represent the sovereign. There are basically two objections. One is that the sponsors aren't going to represent the state very well because they're not fiduciaries, they face a moral hazard w/r/t state funds, etc. These are good reasons to think that the Calif Supreme Court was wrong as a matter of Calif law in its conclusion that the sponsors have standing. But the US Sup Ct doesn't review the Calif Sup Ct on state law issues. The second objection is that a state supreme court can't assign standing if doing so would violate Art. III. I agree, so there are undoubtedly limits to who can be deputized to represent the sovereign, but I think that given the logical connection, this case falls within those limits.

In Windsor, I'll begin by saying that I think enforce-but-don't-defend should be used extremely sparingly. But it's sometimes a sensible compromise between don't-enforce-don't-defend (which CJ Roberts seemed to be advocating) and enforce-and-defend (which Justice Scalia was advocating). In cases like Windsor, the Roberts solution risks giving the President too much power, while the Scalia solution risks a lackluster defense by the SG. So I think that the Court ought to find a way to reward the executive for submitting its constitutional views to judicial resolution.

Having said all of that, I think there's enough wiggle room in the standing issues so that the Court could find no standing in either case as a means of ducking the merits. If it does, Alexander Bickel will smile down from heaven.

Andrew Hyman said...

I'm not sure Bickel would smile. His objection to Roe, for example, was not that the Court reached the merits, but rather "that only two dissented from the Court's decision".

If the Court wiggles out of reaching the merits on the gay marriage cases, it may well be because some of the justices feel it would be more politic to impose their will at a later date.

Michael C. Dorf said...

AH et al: Just so there isn't any doubt about where I stand, I disagree in two ways. First, I myself think the case against a constitutional right to SSM is much weaker than was the case against Roe in 1973. Second and more importantly, at least four and probably five or even six Justices feel the same way. From THEIR perspective, the reason to wait is not really because in five or ten years they'll have better evidence that recognizing a right to SSM does no unforeseen social harm. The reason to wait is that in five to ten years there will be so few opponents of SSM that these Justices can do what they already think the Constitution requires (i.e., recognize a right to SSM) without fear of undermining the Court's legitimacy. Under such circumstances, ducking the merits is precisely an exercise of the Bickelian "passive virtues," regardless of what Bickel did or would have thought about the merits of any particular issue.

Andrew Hyman said...

MD, you said: "I disagree in two ways. First, I myself think the case against a constitutional right to SSM is much weaker than was the case against Roe in 1973. Second and more importantly, at least four and probably five or even six Justices feel the same way."

Evidently you misunderstand my view, because I don't disagree with any of that. First, from a moral perspective, there is a much stronger case for SSM than there was for Roe (which isn't really saying a whole lot in my view). I would love it if the Court would strike a deal whereby SSM is immediately imposed nationwide, in return for the Court overturning Roe. I mean, if the Court is going to read the Constitution as authorizing them to dictate whatever is fundamentally right and wrong in this country, then the case against SSM is much weaker than the case against Roe, just as you said.

On your second point, I agree that probably a majority of the justices are in accord with you and me, in that they view the constitutional right to SSM as stronger than the case for Roe.

Generally speaking, if the Court really believes that there's a constitutional right to SSM (which I do not believe), then it would be kind of cowardly (or Machiavellian, or both) to dodge the question now. We insulate judges from political pressure precisely so they can adhere to legal principle. And when I say that I don't believe there's such a constitutional right, that says nothing about what policy I think legislatures ought to adopt.

Michael C. Dorf said...

Thanks for the clarification!

Andrew Hyman said...

Sure. :-)

Joe said...

I agree that social science is too open to question to be a safe bet but find Paul's stance a tad exaggerated. Also, bottom line, social science (like it or not) is going in some fashion influence constitutional analysis. There are loads of questions there and at least some of them are going to in some fashion provide an opening for social science to be of some help. Just shrugging off a major subset of knowledge is not going to work.

Joe said...

"First, as in Bolling v. Sharpe, the Equal Protection Clause would be superfluous if the same principles were already embodied in substantive due process"

The ruling itself noted that the two are not contiguous so that a firm enumeration of equal protection is a stronger one.

The BOR are also not "superfluous" even if Congress would not have had the power, e.g., to establish religion even without it. It is an added protection to underline the point.

I don't understand what Stevens' statement as to "the" adds to the conversation. He thinks EP applies to same sex couples. His only beef was that he was no fan of tier review, there being only "one" equal protection clause.

The courts shouldn't rely on any "bogus" evidence. But, if during the fact finding portion of a trial, e.g., a judge is assisted by non-bogus social science research, neither Stevens nor I would be upset.

Andrew Hyman said...

I never said Stevens was consistent, but if he were then he'd acknowledge that the draftsmen of the EP Clause intended to immunize a previously identified category or subset of equal protection, namely the degree of equal protection that white citizens enjoyed at the time the Fourteenth Amendment was written. It was that equal protection that was extended to all other people and races.

As for Bolling v. Sharpe, I'm with Michael McConnell; it should have been decided on non-constitutional grounds. Merely inventing some slight difference between the real EP Clause and the reverse-incorporated EP Clause does not a plausible theory make. And then there's the illegitimacy of the whole substantive due process doctrine of which that reverse-incorporation is an example; even people who contend for a substantive due process inference from the Fourteenth Amendment acknowledge that no such thing can be legitimately inferred from the Fifth Amendment (see "The One and Only Substantive Due Process Clause" by Ryan Williams, Yale Law Journal, 2010).

The best way for SCOTUS to enhance it's legitimacy is to follow the law like everyone else, IMHO.

Paul.K said...

Taken in context, Justice Thomas appears to be saying that the impact of intentional discrimination--as measured by social science or by any other means--is simply not relevant to whether there is an equal protection violation. The question is whether such discrimination exists. And that is indeed the point that is made overwhelmingly by those who offer the normative critique of the Brown Court's purported use of the Clark study.RS Gold | Gold für World of Warcraft Gold

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