Online articles by Carter, Evelyn R. | Northwestern University Law Review

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April 4, 2018

Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice Rehnquist—himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against White applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory and empirical scholarship on motivated social cognition.