Law and Race Commons^™

Eyes Wide Open: What Social Science Can Tell Us About The Supreme Court's Use Of Social Science, Jonathan Feingold, Evelyn Carter

Faculty Scholarship

In McCleskey v. Kemp, the Supreme Court rendered statistical evidence of racial disparities doctrinally irrelevant to a criminal defendant’s equal protection claim. Fifteen years later in Grutter v. Bollinger, Chief Justice Rehnquist—part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School had unconstitutionally discriminated against White applicants. This facially inconsistent treatment of statistical data invites the following inquiry: Why do judges (including Supreme Court Justices) rely on social science in some cases, yet reject it in others? We suggest that one answer lies at the intersection of Critical Race Theory and empirical …