Academic journal article Duke Journal of Gender Law & Policy

The Role of Social Science in Judicial Decision Making: How Gay Rights Advocates Can Learn from Integration and Capital Punishment Case Law

Academic journal article Duke Journal of Gender Law & Policy

The Role of Social Science in Judicial Decision Making: How Gay Rights Advocates Can Learn from Integration and Capital Punishment Case Law

Article excerpt


This Article explores the intersection of social science and judicial decision making. It examines to what extent, and in what contexts, judges utilize social science in reaching and bolstering their rulings. The Article delves into three areas of law that are typically not grouped together--integration, gay rights, and capital punishment--to see the similarities and differences in the use of empirical findings. Analyzing the language in judicial opinions from family courts, district courts, circuit courts, and the United States Supreme Court enabled the emergence of trends. The opinions revealed that inconsistency in the use of social science may stem from how a given issue is framed, the tide of public opinion on an issue, and whether social science in that realm is settled. Application of these principles to the gay rights context suggests that if the Supreme Court were to hear a case on gay marriage, a national consensus on the issue would be more outcome determinative than settled social science.


"[T]he Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures." (1)

Judicial opinions are significant for their holdings, but one cannot fully grasp the significance of those holdings without exploring the reasoning that led to the conclusion. To read the rule derived from a case and nothing more tells only part of the story about why a case is significant and the precedential value it may hold. Just as a holding cannot be understood in isolation, a case cannot be understood without reference to history, the changing tides of public opinion, and other cases within a given field. Judicial opinions explicate what may not be apparent from a holding and shed light on what evidence tipped the scales in a given direction. When a court's decision in a case has considerable ramifications on constitutional interpretation or ingrained societal practices, it is crucial to uncover what convinced the court.

Over the past century, there has been a marked increase in the number of social science studies brought to the attention of courts and a correlated rise in the frequency with which studies are cited in judicial opinions. "Social science" refers to the work of people from myriad fields who utilize different methods to analyze and explain social phenomena and rest their explanations on a scientific basis. (2) This scientific basis permits social scientists to "claim an 'objective' understanding of human behavior." (3) One way to obtain this objective understanding is through experiments or field-based data collection to test hypotheses. (4) Both quantitative and qualitative studies fall under the social science umbrella, and both types appear in judicial opinions. Citations to--and discussions of--surveys, polls, experiments, textual analyses, and direct observations by social scientists weave throughout present-day case law. Judicial opinions often entail different kinds of methodologies and findings, strongly suggesting that there are no discernible bounds on the types of social science courts will cite. (5)

The utilization of social science demonstrates that courts go beyond strict application of case law to consider extra-judicial factors when making their decisions. In other words, the citation of social science illustrates that judges do not decide a case only on the facts in front of them but instead take into account larger societal issues and "facts" from the world outside of law. Judges "must constantly import from disciplines around the law in order to stay up-to-date" (6) because the social context in which the law is applied is not static and evolves over time. Because a given case can have repercussions beyond its particular facts, it is important for judges to consider how the rule they adopt may influence society. …

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