Posted by Jay Livingston
Doug Hartman at The Society Pages is upset about Justice Scalia’s casual and inaccurate summary of social science data. During the oral arguments on DOMA, Scalia said
There’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.This is a bit like saying that there’s considerable disagreement among climate scientists as to whether the earth climate is getting warmer.
Doug Hartman concludes:
For Scalia and his ilk, there is no real knowledge in the social sciences, no authority. Not even any real data or useful information. Just a lot of disagreement and differences of opinion.The title of his post is “Scalia Takes It from ‘Bad’ to ‘Really Bad.’” That still may be understating things. It’s not just that Scalia sees social science as mere opinion. But even when the scientific conclusions are irrefutable, Scalia finds social science knowledge irrelevant. At least when that knowledge is inconvenient for his argument.
The case I have in mind is McCleskey v. Kemp, decided in 1987. Scalia is the only member of that Court still on the bench. He didn’t write the opinion, Justice Powell did, but Scalia was apparently in full agreement.
McCleskey was a Georgia death penalty case. McCleskey, a Black man, had killed a White man. The defense presented the findings of a careful study by David Baldus on race and the death penalty in Georgia. He had looked at 2500 murder cases and concluded, even after adjusting for dozens of other variables, that race made a difference in capital sentencing. In cases with Black defendants, prosecutors were slightly more likely to seek and win the death penalty. The race of the victim weighed even more heavily. When the murder victim was White, prosecutors were four times more likely to seek the death penalty. Unsurprisingly, the cases most likely to bring a death sentence were those like McCleskey’s – Black defendant, White victim.
The underlying assumption of prosecutors and perhaps jurors seems to have been that White lives were more valuable than Black lives.* The taking of a White life, whether by an individual or by the state, was a much more serious event.
Regardless of the accuracy of the Baldus findings, in the majority opinion, they were irrelevant. The study may have shown a general bias in the system. But that didn’t mean that the Equal Protection clause of the Fourteenth Amendment applied to this particular case.
The statistics do not prove that race enters into any capital sentencing decisions or that race was a factor in petitioner’s case. [emphasis in original]To win his case, McCleskey would have to show that the prosecutors in his particular case were acting on racial prejudice. If the racism was unconscious, that would be an impossible task. And even if prosecutors were aware that they valued White lives above Black and were acting on the basis of that evaluation, it’s unlikely that they would have been writing memos revealing their prejudice.
The majority did have a point. You can’t use aggregate data to establish a connection in any single case. That’s the ecological fallacy. But the Court could have said that Goergia’s death penalty system was so tainted by racial prejudice that it would have to be suspended. Instead, the court said,
At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.The Court had moved far from its weighing of social science evidence in Brown v. Board of Ed. In that case too, as my colleague Jessica Henry reminds her students, the Court could have said, after reviewing the data, “Apparent disparities in education are an inevitable part of the school system.” Instead, it said that those disparities were in violation of the Equal Protection clause and that school systems must reduce those disparities by desegregating.
The message in McCleskey was much different, the Court tossing the data aside and saying in effect, “It’s racist, it’s unfair. Get over it.” I doubt that Scalia’s relation to social science data is any different today.
* There’s a quotation often attributed to an unspecified 19th centurty Southern prosecutor or judge: “If a Black man kills a White man, that’s capital murder. If a White man kills a Black man, that’s justifiable homicide. And if a Black man kills a Black man, that’s just one more dead nigger.” The quote may be apocryphal. The sentiment and cognitions it expresses were real then; they were real at the time of the Baldus study; and they may still be real today.