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ABSTRACT
The use of social science research in reaching a judicial decision with broad societal implications dovetails with the emerging push for evidence-based policies regarding criminal procedure issues. This article examines the use of social science research by individual U.S. Supreme Court Justices and the type of publication from which they cite over a fifteen-term period. Results indicate that peer-reviewed articles are a prevalent type of social science research relied upon by Supreme Court Justices and that the use of social science varies widely among members of the Court. Policy implications and future research avenues are discussed.
Notes
1 Twenty-three scholarly works were cited. For particular journals cited, see Mancini and Mears (Citation2013).
2 For the Court’s acknowledgement of this, see Riley v. California (Citation2014), where a unanimous Court acknowledged the significant difference between the reasonable expectation of privacy in (1) the search of a cell phone and (2) that of the search of a traditional billfold, during a search incident to arrest.
3 In Furman (Citation1972), both the Petitioner and the Respondent cited empirical evidence in support of their arguments.
4 A “living” Constitution is the idea that the Constitution has a dynamic meaning and that contemporaneous society should be considered when interpreting portions of the Constitution.
5 Elizabeth Tanke, a social scientist, and Tony Tanke, a lawyer, contacted the attorneys in the case and offered to gather and provide research on jury size and deliberations for them to use in their briefs and oral arguments before the Court and the attorney for the government (but not the petitioner) agreed to that assistance (Acker, Citation1990b).
6 Unlike in Watkins v. Sowders (Citation1981) where the Court ignored social science on eye-witness identification, in Perry v. New Hampshire (Citation2012) the Court cited it in several places. Both the majority and the dissent in the case cited research on the likelihood of misidentification (e.g., Brewer et al., Citation2002; Douglass & Steblay, Citation2006; Lindsay & Wells, Citation1980).
7 “A judicial activist … is a judge who engages in making constitutional law that cannot be firmly tied to clear constitutional language or to the intent of the Framers” whereas one who practices judicial restraint “interprets the Constitution by appealing to [its] original intent” (Luban, Citation1987, p. 9).
8 The Mitchell and Klein (Citation2016) review examined all criminal procedure cases during those three terms, it was not limited to constitutional criminal procedure cases as is this study and the purpose of their review was different than that in this study.
9 Just because the amicus briefs were not cited to directly does not mean they did not have an impact on the opinion writer (Hafemeister & Melton, Citation1987; Acker, Citation1990b; Merryman, Citation1954).
10 Neither Fagiman nor the justices mentioned which case they were referring to, but upon a search of the cases around the time of the interviews, it was likely United States v. American Library Association (Citation2003), which challenged the constitutionality of Congress’s Child Internet Protection Act. This act required that libraries install pornography filtering software on all internet terminals in order to receive federal funding.
11 Criminal Procedure cases are defined as Court opinions focusing on the Fourth, Fifth, Sixth, Eighth, and Fourteenth (due process clause) Amendments of the United States Constitution.
12 The 2001 term through the 2015 term.
13 Only actual citations to a publication are included. A casual reference to social science generally was not. The justice must have cited an actual source for it to be counted. Negative evaluations of social science with a journal citation were also included in the count.
14 There are several law and social science “hybrid” journals (e.g., Law and Human Behavior). If a source was a peer-reviewed journal, it was placed in that category and if it was not, it was placed in the law review category.
15 This is despite a comment in 2007 by Chief Justice Roberts that law review articles are not “particularly helpful for practitioners and judges” in reaching judicial decisions (Newton, Citation2012, p. 399).
16 Examples of peer reviewed journals include: Crime and Public Policy; Crime and Delinquency; Journal of Empirical Legal Studies and Annals of the American Academy of Political and Social Science. For a full list please contact the author.
17 For example, the National Council of Juvenile and Family Court Judges, Civil Protection Orders: A Guide for Improving Practice (2010) was cited in Justice Ginsburg’s dissent in Fernandez v. California (2014). The AAA Foundation for Traffic Safety, Measuring Cognitive Distraction in the Automobile 28 (June 2013) was cited in Justice Scalia’s dissent in Navarette v. California (2014).
18 Citing Baldus et al., (Citation2001).
19 Peremptory challenges are utilized by attorneys in jury selection to eliminate jurors they do not want seated on the jury panel. The number available to each side is typically set by the judge and with a few exceptions (gender and race), they can be used for any reason the attorneys choose. In Batson v. Kentucky (1986), the Court ruled that the prosecution cannot use their peremptory challenges to eliminate jurors on the basis of race alone. To do so, the Court found, is a violation of a defendant’s rights under the Sixth and Fourteenth Amendments.