Academic journal article Northwestern University Law Review

"Playing It Safe" with Empirical Evidence: Selective Use of Social Science in Supreme Court Cases about Racial Justice and Marriage Equality

Academic journal article Northwestern University Law Review

"Playing It Safe" with Empirical Evidence: Selective Use of Social Science in Supreme Court Cases about Racial Justice and Marriage Equality

Article excerpt

Introduction

The last five years have seen historic shifts in social justice movements that focus on race and sexual orientation.1 In 2013, a jury acquitted George Zimmerman of charges related to the shooting of Trayvon Martin, an unarmed African-American teenager whom he wrongly suspected to be a criminal.2 Three black women activists responded with a social media-fueled movement called #BlackLivesMatter.3 Additional tragic deaths of unarmed African-Americans in 2014 and 2015 galvanized unrest in African-American communities (and beyond) and activism contesting police tactics such as racial profiling and excessive force.4 At the same time, marriage equality activists and lawyers were building the cases that they hoped would secure a nationwide constitutional right to marry a partner of the same sex.5 In 2013, they persuaded the Court to invalidate part of the Defense of Marriage Act, a federal law refusing to recognize same-sex marriages.6 Two years later, the Court, in Obergefell v. Hodges, announced that every state had to license same-sex marriages,7 a decision viewed by many as the capstone of decades of lesbian, gay, bisexual, and transgender (LGBT) legal advocacy.8 By late 2016, however, both of these issues-marriage equality and police violence directed at African-Americans-would be swept off the front pages of newspapers by the unexpected election of Donald J. Trump as President.9 Although the Black Lives Matter (BLM) movement continues to organize and protest, it has, at present, left little mark on federal law. The battery of Supreme Court cases that rebuff the overwhelming majority of legal challenges to police misconduct remains very much intact.10 This disparity might lead a casual observer to think that LGBT people secured full legal equality in recent years, while African-Americans and other people of color continue to lose at the Supreme Court.

While there is truth to the divergent trajectories of African-Americans and LGBT claimants at the Supreme Court level,11 this Essay seeks to supplement and complicate that narrative. We argue that a "fear of too much justice"12 connects race and sexual orientation cases. Even when LGBT people win in cases like Obergefell, or underrepresented racial minorities win in affirmative action cases like Fisher v. University of Texas, the Court carefully cabins its opinions to preserve the social hierarchy with only incremental changes.13 Pressure to "play it safe" may operate at multiple levels: lawyers frame arguments to appeal to Justice Anthony Kennedy's conservative ideology; Justice Kennedy may refrain from articulating arguments that he fears will inflame the religious right; and liberal Justices may opt not to write separately and repudiate troubling aspects of Justice Kennedy's analysis for fear of losing his swing vote.

Marriage equality lawyers played this game by presenting predominantly white, middle-class, and "all-American" plaintiffs-people who were ultimately depicted by Justice Kennedy as "needing" to assimilate into marital norms rather than desiring to change them.14 We demonstrate that these lawyers selectively drew on social science, sidestepping studies suggesting positive differences between same-sex and different-sex couples and the transformational potential of same-sex relationships. Rather than telling a story of sexual minorities becoming like heterosexuals, the Court could have acknowledged that same-sex couples may offer valuable lessons for the broader society. By sketching the road not taken-an intersectional, more inclusive, and more LGBT-affirming marriage equality claim-our analysis suggests that the actual claim in Obergefell mainly mirrored the interests of the most privileged members of the class.

Moreover, in this Essay, we extend the story about racial justice by considering how affirmative action has fared at the Court during this time period. The Court's Fisher decision in 2016 surprised court observers by reaffirming Grutter v. …

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