Empirical Legal Studies

SCOTUS' Treatment of 4th Amendment Claims

Despite extensive scholarly attention the Court's Fourth Amendment jurisprudence, "there has been scant empirical research about how modern Justices have voted in Fourth Amendment cases." To this end, a recent paper by Brent Newton (US Sent. Comm'n), The Supreme Court's Fourth Amendment Scorecard, provides a helpful descriptive contribution. It does so by analyzing the "173 cases from 1982 through 2015 in which the Supreme Court granted certiorari and gave plenary consideration to Fourth Amendment issues.” An excerpted abstract, below, summarizes some of the paper's main findings.

“The key findings include: (1) the overwhelming majority of Fourth Amendment litigants (FALs) before the Supreme Court were criminal defendants rather than civil rights plaintiffs… ; (2) Fourth Amendment claims succeeded in slightly less than one in four plenary-review cases, and the Court reversed the judgment of the lower courts in the vast majority of Fourth Amendment cases in which certiorari was granted; (3) FALs were much more likely to succeed in cases concerning substantive issues than remedial issues; (4) civil rights plaintiffs were slightly more likely to succeed than criminal defendants; (5) individual Justices generally voted in Fourth Amendment cases in a manner that reflected their overall ideological dispositions, yet Justices Blackmun, Scalia, and Breyer bucked this trend, resulting in more ideologically mixed voting blocs in Fourth Amendment cases than in several other divisive areas of the Court’s docket, such as abortion rights or voting rights….”

POTUS Success With SCOTUS

In The Decline of Supreme Court Deference to the President, Lee Epstein (Wash U.) and Eric Posner (Chicago), submit the prevailing wisdom that presidents enjoy unusually favorable success rates at Supreme Court to data. Obviously, both in terms of case selection as well as benefits from having the Solicitor General's office argue the president's cases, plausible reasons support the conventional wisdom. What Epstein and Posner find, however, is that the conventional wisdom may warrant an updating.

The paper exploits "an original dataset consisting of cases of concern to each of the modern-day presidents (from Franklin D. Roosevelt forward). The modern U.S. Supreme Court Database served as our foundation. This version covers all orally argued cases (including per curiam opinions) decided between the 1946 and 2015 terms. To include the Franklin Roosevelt administration, we appended cases from 1932- 1945 terms using the legacy Supreme Court Database. In total, our dataset covers 13 presidents and 84 Court terms. For all terms, we exclude per curiam decisions.”

The paper's main findings include that the "historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, which won nearly 80% of the cases, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate, barely 50%." The authors' explanations for this trend include a "growing self-assertion of the Court and the development of a specialized private Supreme Court bar. We find no evidence for two other possible explanations—that the trend is due to greater executive overreaching than in the past, or ideological disagreements between the Court and the presidency.”

SCOTUS' (Mis-)Use of Empirical Evidence

While I am certainly among those inclined to applaud the Court's greater acceptance of empirical evidence, the Justices (and/or their clerks) simply have to know what they're doing. And in the empirical realm, sometimes they clearly do not.

The most recent example of this is highlighted by a piece (here) in today's NYT by Adam Liptak. If Liptak's reporting is accurate, Justice Kennedy’s majority opinion in Smith v. Doe (2003) includes a factual assertion about "the rate of recidivism [80%] of untreated offenders." Evidently, empirical support for the Court's factual assertion relies, at bottom, on a "1986 article in Psychology Today." One consequence, as Liptak observes, is that "the basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal."

2017 AP-LS Annual Conference

For those interested (or planning to attend) the American Psychology-Law Society annual conference later this month in Seattle, information on the conference program (here) and pre-conference workshops (here) is now available.