Social Sciences and the Law

Muller v. Oregon (1906) is widely considered the earliest instance in which the Supreme Court used social science research to support its conclusions. In upholding the constitutionality of legislation that limited the number of hours women could work, the Court drew extensively from Louis Brandeis 's brief, which reviewed social science and medical research to argue that long working hours had a negative effect on women's health. The Court's use of the arguments in the Brandeis brief marked an important turning point between 19th century and 20th century legal thought.

The dominant understanding of the law during the 19th century was that the law was a set of formal, neutral, and apolitical rules to be applied deductively to the issues in particular cases. Often described as legal formalism, this view was challenged in the early 20th century by legal realists who argued that law was a social activity and, as a result, social science evidence should be used to make law in instances when existing legal rules were inadequate for resolving legal questions.

Perhaps the most famous-or for some, infamous-use of social science research in judicial decision making is footnote 11 of the Supreme Court's opinion in Brown v. Board of Education of Topeka (1954). To support the contention that segregation was harmful to Black students, Chief Justice Earl Warren provided references to social science studies, which he described as “modern authority.”

The NAACP's strategy of using social science research to build its case against school segregation developed slowly and was influenced in part by the case of Mendez v. Westminster (1946). In Mendez, a group of Mexican American parents won their suit, which contested the segregation policies of four Southern California school districts that required their children to attend different schools than White students attended. The Ninth Circuit upheld the trial court's ruling in Westminster v. Mendez (1947) after the school boards appealed. Mendez was significant for two reasons. First, it was widely interpreted as a sign that the doctrine of segregation was becoming less socially and legally tenable. Second, it was the first case in which social science evidence was used to challenge school segregation. Two expert witnesses for the plaintiffs argued that segregation was a form of discrimination that taught Spanish-speaking Mexican American students they were inferior to their White English-speaking peers. When the school districts appealed the lower court's decision, a number of prominent civil rights organizations filed amicus briefs in support of the Mexican American students and their families, including the NAACP and the American Jewish Congress (AJC). Both the NAACP and the AJC's briefs directly challenged the constitutionality of segregation using evidence from social science research to support their legal arguments.

After the Ninth Circuit Court's decision in 1947, the NAACP started to articulate a strategy for directly challenging the constitutionality of segregation. As the NAACP lawyers developed this tactic, with the assistance of other civil rights organizations, they started to marshal an extensive body of social scientific evidence against segregation. For example, as the case of Sweatt v. Painter (1950) was argued in the Texas courts in 1947, Thurgood Marshall used the testimony of anthropologist Robert Redfield to make the case that segregation has “irrevocably detrimental effects,” even in the case of absolute equality of conditions between the “separate” school and the majority school.

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