Academic journal article Northwestern University Law Review

What Can Brown Do for You?: Addressing Mccleskey V. Kemp as a Flawed Standard for Measuring the Constitutionally Significant Risk of Race Bias

Academic journal article Northwestern University Law Review

What Can Brown Do for You?: Addressing Mccleskey V. Kemp as a Flawed Standard for Measuring the Constitutionally Significant Risk of Race Bias

Article excerpt

[I]f you're the intelligent man on the street and the Court issues a decision, and let's say, the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7percent, where EG is the sigma of party Xwasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that's a bunch of baloney.

-Chief Justice John Roberts†


As Chief Justice John Roberts's above quotation-which derives from the oral argument for Gill v. Whitford, a political gerrymandering case heard during the Supreme Court's fall 2017 term-suggests, at least some distinguished members of the nation's highest court are deeply skeptical of social science evidence. In fact, later in the argument, the Chief Justice further cautioned against courts attempting to make decisions based on "sociological gobbledygook."1 Beyond Roberts's expressed belief in Gill that political science data can be unfathomable to the common person and thus should not be relied on by the Court, there have been numerous instances of the Court more generally applying inconsistent approaches to social science research. This has especially been the case when the Court has considered social science data on racial impact. On this, the thirty-year anniversary of McCleskey v. Kemp,2 we suggest that the Court's decision in that case stands out for a number of problematic reasons, but namely as a case where social science evidence elucidating the meaning of race in America was woefully ill-considered.

The majority opinion in McCleskey made two very disturbing assertions about social science data. First, the Court claimed the Baldus studies introduced by McCleskey, a black man sentenced to death for the killing of a white police officer, failed to prove a sufficient causal link between race and the imposition of the death penalty in Georgia.3 Second, the Court maintained the data did not "demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process."4 The Justice Lewis Powell-led opinion reached these conclusions despite data in the studies confirming that a black person who killed a white person in Georgia was treated very differently,5 receiving the death penalty 22% of the time, as opposed to the 1% of black defendants who received the death penalty when their victims were black.6 Powell's claims about the Baldus data reflect an incommensurate approach for courts considering empirical research on race. For example, he seems to suggest that he would have been influenced by empirical data more persuasively evincing causation. Specifically, Powell stated: "Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case. Statistics at most may show only a likelihood that a particular factor entered into some decisions."7 In determining, however, that McCleskey involved no constitutional violation, he ignored the relative strength of the multiple regressions in the Baldus research-which are by definition probabilistic measures8-and the reality that social science studies very rarely expound on causation in a manner that could support absolute certainty.9

This Essay claims the McCleskey Court demonstrated a cramped understanding of both equal protection doctrine and the value of social science evidence. First, we propose that the McCleskey majority opinion problematically expanded the antidiscrimination standard articulated in earlier cases by adhering to a rigid "because of' requirement for establishing intent to discriminate in a specific case.10 The Court's Washington v. Davis opinion in 1976 first explicated that a Fourteenth Amendment Equal Protection Clause claim required both disparate racial impact and a discriminatory purpose.11 In 1979, Personnel Administrator of Massachusetts v. …

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