From McClesky to Whitford: the Supreme Court’s Ambivalent Attitude Towards Social Science

Written by Russell Quarles

McCleskey v. Kemp was decided on April 22, 1987, and yet the 30 years that have elapsed since Justice Powell circulated his majority opinion have done little to soften McCleskey’s sharp edges. The case concerned a challenge from a death-row inmate to the administration of capital punishment in Georgia, where he had been sentenced for the killing of a white police officer. McCleskey argued that his capital sentence was driven in large part by his race, in combination with the race of his victim, and that these considerations violated his constitutional rights under the Eighth and Fourteenth Amendments. As evidence, McCleskey proffered a study demonstrating that a black man who killed a white man in Georgia received a death sentence 22% of the time, as compared to the 1% of death sentences in cases where the victim was also black.  Writing for the majority of the Court, Justice Powell held that social science studies could not prove that there was an individual intent to discriminate against McCleskey during his prosecution or trial, and that his challenge was therefore deficient. McCleskey, having lost his case, was put to death on September 26, 1991.

Powell’s dismissive views of social science are still alive and well at the Supreme Court, as Chief Justice Roberts recently demonstrated with his snide reference to “sociological gobbledygook” during oral argument on October 3. Professors Mario Barnes (UC-Irvine) and Osagie Obasogie (Berkeley) visited Northwestern’s campus last week to discuss their recent research on the Court’s handling of social science at the Northwestern University Law Review 2017 Symposium, A Fear of Too Much Justice.

 

Prof. Barnes speaks while other members of the panel look on.

Prof. Barnes began the discussion by comparing McCleskey’s handling of social science with the Warren Court’s use of research data in Brown v. Board of Education (1954). In Brown’s (in)famous footnote 11, the Court cited the so-called “doll studies,” which purported to prove that children of color had lower self-esteem than white children. Since Brown, the study’s findings have been challenged on a number of fronts, and the Court’s treatment is considered overly credulous by some scholars.

By contrast, McCleskey saw the Court attempting to bury the findings of a methodologically sound study so that the majority could reach their desired result, namely, upholding the death penalty in Georgia without regard to its racially disparate application. For Barnes and his coauthor, Dean Erwin Chemerinsky (U.C. Berkeley), these cases demonstrate that the judiciary needs to adopt better norms about the use of social science in the courts. Data should not be a cudgel used to promote a judge’s own presuppositions, nor should it be an obstacle that a judge need only argue around to reach their desired result. Social science should instead inform a judge’s thinking while they consider legal and factual issues, serving much the same function that economics now does in the courtroom. Barnes advocated for the adoption of standards at the Supreme Court concerning when a judge should allow social science to enter the record, and for how that science could be objectively considered, taking the expert testimony standards from Daubert v. Merrell Dow Pharmaceuticals (1993) as a model.

Prof. Obasagie introduces the symposium.

Professor Obasogie, joined on the panel by his coauthor Zachary Newman (U.C. Berkeley), took a different approach to critiquing the majority opinion in McCleskey. In their view, McCleskey’s result did not come because of (or in spite of) the Court’s handling of social science, it was instead driven by a desire to narrow the judicial consideration of ‘intent’ in the context of discrimination. The authors argued that state-sanctioned killing—either a capital sentence imposed in court, or a police shooting in the street—is always the result of a societal structure. In McCleskey’s case, the public of the state of Georgia had an intent to erect the racially discriminatory structures around capital punishment, and it had an intent to maintain them, despite their demonstrably worse effects for black men. And yet in a series of decisions, the Court atomized the meaning of ‘intent’ within the judicial system such that any consideration of larger social forces—the very forces that are captured and measured in social science—was useless in finding intent. Thus McCleskey, alongside Washington v. Davis (1976) and Graham v. Connor (1989), removed racially discriminatory social structures from the judiciary’s purview, effectively gutting the possibility of any future interventions on the scale of Brown.

To sum up his discussion, Prof. Obasogie asked the audience, “After McCleskey, what’s left to protect people of color in America?”

“Jesus. That’s all we have left.”

Panel Discussion: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Written by Argie Mina

On October 12, 2017, OUTLaw, Northwestern Pritzker School of Law’s LGBT affinity group, hosted a panel discussing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, an upcoming Supreme Court case. The case centers on whether businesses can refuse service to LGBTQ customers based on their First Amendment rights to free speech and free exercise of religion. The petitioner in Masterpiece Cakeshop refused to make a rainbow cake for a same-sex marriage ceremony.

Professor Andrew Koppelman, a Northwestern constitutional law professor and scholar, opined that the petitioner’s free speech argument was stronger than the argument based on the free exercise of religion. Professor Koppelman noted three previous Supreme Court cases relevant to Masterpiece CakeshopWest Virginia State Board of Education v. Barnette (1943), Wooley v. Maynard (1977), and Boy Scouts of America et al. v. Dale (2000).

In Barnette, the Court held that the free speech clause prohibited public schools from requiring students to recite the pledge of allegiance. Based on this case, Professor Koppelman stated, the government cannot compel people to say words with which they disagree. The Court extended prohibition against forced speech in Wooley, where it held that New Hampshire could not require citizens to display the state motto on their license plates.

In Dale, the Court held that the Boy Scouts were not required to admit a gay member because it would “affect[] in a significant way the group’s ability to advocate public or private viewpoints.” The First Amendment’s free speech clause, the Court reasoned, superseded New Jersey’s public accommodation laws. According to Professor Koppelman, Dale extended Barnette’s prohibition against forced speech to the form of a person: admitting a gay member was seen as a message imposed on the Boy Scouts.

Masterpiece Cakeshop argues that to compel a business to bake a cake for a gay wedding would be to compel speech in support of same-sex marriage. According to Professor Koppelman, the question is whether the government is forcing Masterpiece Cakeshop to send a message in support of same-sex marriage in the form of a rainbow cake. In other words: is a cake a message, and do Wooley and Dale apply?

Professor Koppelman suggested that the current case presents a broad political question about religious people who do not want to facilitate same-sex relationships. He believes that compromise is the solution, but that the courts are not the best equipped institution to provide the answer. Rather, Professor Koppelman opined, this is an issue better suited for the legislature.

Jamie Gliksberg, a staff attorney at LGBTQ legal advocacy organization Lambda Legal, noted that the Supreme Court has said that any conduct can be considered to include some form of speech. However, according to Ms. Gliksberg, this does not necessarily mean that all conduct is protected by the First Amendment. Ms. Gliksberg noted that the focus is not on free speech, but rather on the requirement to abide by anti-discrimination laws. She also voiced concerns that providing religious exceptions to public accommodation laws would promote some religious beliefs over others, thus creating establishment clause issues.

When asked to predict the outcome of the case, the panelists remained undecided as to which party the believed would win and whether the Court’s holding would be narrow or broad. Specifically, Professor Koppelman noted that Justice Kennedy has historically been supportive of gay rights and has also had an expansive view of free speech, which are two ideals at issue in this case.

Finally, Mike Ziri, the Director of Public Policy at Equality Illinois, an Illinois civil rights organization, commented on societal attitudes toward same-sex relationships. He noted that after the Court’s decision Obergefell v. Hodges (2015), which legalized same-sex marriage, many believed the LGBTQ community had “won” and there was nothing left to fight for. However, Mr. Ziri argued that opponents of same-sex rights have found “creative ways to fight back.” He cautioned that despite what may be considered “great laws,” the LGBTQ community is not immune to discrimination.

A Fear of Too Much (Criminal) Justice: Social Science Evidence and the Tension Between Reform and Transformation in the Criminal Justice System

Written by Hillary Chutter-Ames

Professor Paul Butler starts the panel. (Photo Thomas H. Rousse)

McCleskey v. Kemp (1987) was an example of “good-enough-for-black-people kind of justice.” At least, that was how Professor Paul Butler (Georgetown) characterized the seminal death penalty case under discussion at the recent Northwestern University Law Review Symposium, A Fear of Too Much Justice?: Equal Protection and the Social Sciences 30 Years after McCleskey v. Kemp.

Professors Aya Gruber (Colorado) and Angela Onwuachi-Willig (Berkeley) joined Butler on a symposium panel, moderated by Professor Deborah Tuerkheimer (Northwestern), discussing the impact of McCleskey specifically in the context of the criminal justice system.

Other symposium panels noted the import of McCleskey more broadly for equal protection doctrine and anti-discrimination efforts. However, the original case dealt with the death penalty and the constitutionality of Georgia’s death penalty statute. The social science evidence at issue in the case was the Baldus study, which demonstrated the racially disproportionate application of Georgia’s statute penalty in capital cases. The Court refused to acknowledge this social science  evidence of racial disparity and instead upheld the Georgia statute.

This criminal justice panel discussion highlighted the tension between efforts to reform as opposed to transform the criminal justice system, noting the role of McCleskey in shaping how social science can play in role in both kinds of efforts.

Each panelist discussed a different aspect of the intersection of McCleskey, social science evidence and the criminal justice system.

Onwuachi-Willig presented social science research about the racially disparate disadvantages facing the formerly incarcerated in finding employment, asserting that this system is permanently designating the formerly incarcerated as an economic underclass.

Professor Gruber speaks. (Photo Thomas H. Rousse)

Gruber focused on the idea that allowing racial disparity evidence would “shatter the illusions” of the justifications the state uses for punishment. She asserted that the McCleskey court did not fear racial disparity evidence in the abstract, but instead feared racial disparity evidence that would dilute the state’s authority and legitimacy to punish wrongdoers. Gruber instead called for a radical reorientation of the bases for the legitimacy of criminal punishment.

Butler argued that courts will not use social science evidence of racially discriminatory impact, because courts are part of a broader white supremacist institutional structure. He argued that starting with Terry v. Ohio (1968), the Court’s criminal procedure jurisprudence has expanded police power against black men in an intentional racialist project by the Court. The true problem, according to Butler, is proving the racial motives of actors in the criminal justice system, including the Court.

Butler characterized the Court’s response to the evidence of racially disparate impact in McCleskey as the Court being upfront about its white supremacy. If the Court recognized this evidence of the racial motive of criminal justice actors in capital cases, it would have to recognize it in other cases. This would undermine the whole criminal justice system, which the Court was unwilling to contemplate.

Butler concluded that using social science to win equal protection claims, including in the criminal justice context, is a “doomed” project: rights don’t make a difference on the ground in how black men experience a white supremacist criminal justice system.

So is that it? Is there anything left of the criminal justice system to salvage? Is there any role for social science evidence to play?

The panel discussion highlighted several avenues for moving forward.

Tuerkheimer noted two examples where social science evidence has proven an important factor in the criminal justice reform context: the Department of Justice’s Ferguson Report and the Floyd v. New York (S.D.N.Y. 2013) litigation.

Professor Onwuachi-Willig at the symposium (photo Thomas H. Rousse)

Onwuachi-Willig demonstrated that social science can help to document the dimensions of systemic racism. However, she noted that McCleskey’s continuing impact demonstrates how unwilling courts are to examine the kind of evidence that shows structural racism, as opposed to evidence showing the racist intent of a particular individual. As Onwuachi-Willig noted, any finding of structural racism on the part of criminal justice actors would demand a much broader remedy than the court would be willing to consider.

Onwuachi-Willig turned instead to a different institutional actor, the legislature, as an opportunity for concrete proposals for reform within the system. She suggested advocating for initiatives that would require the legislature to conduct racial impact statements. These could be applied only to pending legislation, or more broadly to existing legislation as well. Given the pivotal role of education in improving the job prospects of the formerly incarcerated, Pell Grants could be reinstated for the formerly incarcerated, requiring prisons to provide vocational job training or prison entrepreneurship programs. Onwuachi-Willig also proposed a rule that would require companies relying on prison labor to refrain from discriminating against applicants or employees on the basis of their criminal records.

Another symposium participant and panelist, Professor Mario Barnes (UC-Irvine), suggested using social science on the enforcement side of the criminal justice system, to educate police departments about the social science implications of their conduct, such as the impact of implicit bias in policing.

Butler rejected this, emphasizing the need for transformation. “We need social science to help us understand how to transform this system and this law. We need social science to help with this transformation.” He encouraged looking beyond reform: If the criminal justice system is supposed to be keeping us safe, can social science show us other ways of accomplishing that goal? Can social science show us alternatives to enable the transformation of the criminal justice system?

Where in the World is Russian Doctor Grigory Rodchenkov?

Written by Kelsey Chetosky

In July 2017, Russia’s Investigative Committee charged Russian Dr. Grigory Rodchenkov with “abuse of official powers,” alleging that he had destroyed Russian athletes’ doping tests in the 2014 Winter Olympics in Sochi. On September 28, 2017, the Russian Ministry issued a warrant for Rodchenkov’s arrest.

However, one year prior to the Russian Investigative Committee’s allegations, Rodchenkov fled from Russia to the United States with the help of American filmmaker Bryan Fogel. Rodchenkov entered the United States Witness Protection program in January 2016.

So, why would an American filmmaker help a doctor accused of cheating in the 2014 Winter Olympics flee Russia?

The Documentary and Bryan Fogel’s Discovery

Icarus Movie PosterBryan Fogel’s Netflix documentary, Icarus, answers this question. This unlikely partnership started when Fogel began investigating doping trends in professional cycling. After learning about Lance Armstrong’s longtime use of performance-enhancing drugs, Fogel, an amateur cyclist, enlisted a team of doctors to help him “dope up” in order to win a prestigious amateur race called the “Haute Route.” Fogel hoped to prove that he could win the race with help from chemical enhancements. As he states in his documentary, “Originally, the idea I had was to prove the system in place to test athletes was bullshit.”

After discussing his plans with many doctors, he was introduced to Dr. Grigory Rodchenkov, who was then the Director of Moscow’s World Anti-Doping Agency (“WADA”) Laboratory. Rodchenkov offered to help Fogel navigate his way through a complex regime of steroids and anti-aging hormones. Over the next few months, Fogel injected himself with the drugs on a daily basis, which put him on track to compete with the top cyclists.

The documentary took an unexpected turn in November 2015 when WADA released a report tying Rodchenkov to state-sponsored doping efforts in Russia. Realizing there were much bigger issues at play, Fogel did what any good investigative filmmaker would do—he followed the story.

The Russian Doping Scheme

“Bryan, it’s a disaster, they’re killing people, cutting heads,” Rodchenkov told Fogel via Skype, describing the fallout after the Russian government received news of the WADA report. In the documentary, Rodchenkov admits to helping Russian Olympic athletes conceal positive urine samples at the 2014 Winter Olympics, but claims that Russian officials forced him to do it. He describes at length how members of the Russian intelligence service helped break into supposedly tamper-proof sample bottles each night. Rodchenkov would pass the samples through a small hole in the wall, quickly replacing them before testing the next morning. After the report was released, Russian officials forced Rodchenkov to resign as Laboratory Director, and he fled the country.

According to Rodchenkov, dozens of Russian athletes were doping at the 2014 Winter Olympics, including at least fifteen medal winners. On December 9, 2016, an independent report published by Canadian lawyer Richard McLaren confirmed Rodchenkov’s account. The report outlined the history of Russian doping at the 2012 Summer Olympics in London, the 2013 Moscow Track and Field World Championship, and the 2014 Winter Olympics. McLaren described the 2014 Winter Olympics as the “apex” of Russia’s cheating, because Russia hosted the event and could control drug testing.

The Charges Against Rodchenkov

The film depicts Rodchenkov as a whistleblower. Since its release, others have named him “Russia’s Edward Snowden.” The Russian sports ministry has continually denied any state-sponsored doping. Rodchenkov remains in witness protection in the United States, fearing that he might be killed because of his public statements incriminating the Russian government and Vladimir Putin. Rodchenkov’s concerns about his safety may not be misguided—two of his close colleagues and former anti-doping officials unexpectedly died in February 2016, soon after the WADA report was released.

Former Russian Sports Minister Vitaly Mutko, now Russia’s Deputy Prime Minister, called the allegations “a continuation of the information attack on Russian sport.” Instead of addressing the reporters directly, Mutko responded via conference with Russia’s state-run media outlet, “TASS.” According to Mutko, the claims are baseless, and were part of an attempt to discredit Russian sports ahead of the 2016 Summer Olympics in Rio de Janeiro.

Despite the evidence from McLaren’s report, which consisted of “1,166 pieces of proof, including emails, documents and scientific and forensic analysis of doping samples,” the International Olympic Committee (IOC) did not ban any Russian athletes from any competitions, instead allowing the individual federations to decide whether Russian athletes may compete. In total, about a quarter of Russia’s athletes were not permitted to compete in the 2016 Summer Olympics. Additionally, the International Paralympic Committee (“IPC”) banned the entire Russian Paralympic team from the 2016 Summer Paralympics.

As of September 2017, WADA has closed its investigation, having concluded that the McLaren report “simply may not be sufficient evidence required to sanction” the Russian athletes implicated. However, the United States and sixteen National Anti-Doping Organizations persist in demanding Russia’s ban from the 2018 Winter Olympics in PyeongChang, South Korea.

As for Rodchenkov’s legal situation, the recent issuance of an arrest warrant may indicate that Russia will soon demand his extradition. However, Russia does not have an extradition treaty with the United States, so that move is unlikely to have any real effect. More news about Rodchenkov will inevitably be released as his case proceeds, but until then, grab some popcorn, power up Netflix and sit back for Icarus’ two-hour shocking exposé.

Introducing the NULRO Blog

Written by ludist

Incoming NULR staff and editorial board members at orientation.

My name is Thomas Rousse, and I serve as the Vol. 112 Senior Online Editor at Northwestern University Law Review. It’s my pleasure to welcome you to our new blog. This year, we’re starting a new initiative to give our membership more opportunities to write for a public audience. Members of our staff will write about recent cases, legal issues in the news, and ongoing debates about theory and policy. Second-year law students will work closely with the Online editorial board to provide the same level of professionalism and accuracy as the rest of our publication.

We also accept submissions from outside authors. Please send me an email if you are interested in publishing pieces under 2,000 words, typically with a one- to two-week turnaround.