2017: “A Fear of Too Much Justice”? Equal Protection and the Social Sciences 30 Years After McCleskey v. Kemp

Read the articles from the symposium.

On October 20th, 2017, the Northwestern University Law Review held a symposium re-examining the relationship between race, social science evidence, and the Equal Protection Clause, thirty years after the Supreme Court decided McCleskey v. Kemp. Warren McCleskey, a Black man, was convicted of murdering a White police officer and sentenced to death. On appeal, McCleskey offered statistical evidence showing that Georgia applied the death penalty in a racially biased manner that violated the Equal Protection Clause. The Supreme Court was not persuaded. In extending previous decisions in this area, the Court closed the door on the ability of the social sciences to meaningfully contribute to Equal Protection deliberations. Writing in dissent, Justice William J. Brennan Jr. characterized the majority’s reluctance to consider evidence of discrimination as “a fear of too much justice.”

Thirty years after McCleskey, social scientists continue to demonstrate racial disparities in criminal justice and many other areas of social life with remarkable acuity. Yet, despite new tools, methods, and insights, there is little jurisprudential space for this data to inform the Court’s decisionmaking. With contributions from leading scholars of the connection between Equal Protection doctrine, empirical methods and Critical Race Theory (eCRT), this sympoisum strove to understand how cutting edge interdisciplinary work might lead to novel responses and interventions to doctrinal impasses, such as those exhibited in McCleskey.

Opening Address – Blind Justice

  • Professor Reva Siegel 

Panel – McCleskey‘s Lasting Impact on Equal Protection Doctrine

  • Professor Mario Barnes
  • Professor Osagie Obasogie and Zach Newman 
  • Moderator: Professor Destiny Peery

Panel – Equal Protection and the Social Sciences in Criminal Justice

  • Professor Paul Butler
  • Professor Angela Onwuachi-Willig
  • Professor Aya Gruber 
  • Moderator: Professor Deborah Tuerkheimer

Panel – Equal Protection and the Social Sciences Beyond Criminal Justice

  • Professor Bernadette Atuahene
  • Professor Russell K. Robinson 
  • Professors Kyneshawau Hurd and Victoria Plaut 
  • Professor Michele Goodwin
  • Moderator: Laura Beth Nielsen

Panel – Leveraging Social Science Evidence in the Courts Today

  • Honorable Edmond E. Chang
  • Honorable Sara L. Ellis
  • Honorable Virginia M. Kendall
  • Moderator: Professor Destiny Peery

Keynote Address – McCleskey v. Kemp: Field Notes from 1977–1991

  • Jack Boger