The U.S. Supreme Court’s 1954 ruling inBrown v. Board of Educationis no doubt the most important legal decision of the twentieth century. By declaring that racially segregated schools were inherently unequal schools, the Supreme Court unanimously ruled that widespread educational segregation in the south was unconstitutional and initiated the chain reaction that toppled America’s system of racial apartheid, not just in education but in all areas of public life.

Widely lauded for its cogency and moral clarity, the landmarkBrowndecision has also been a major source of controversy among social scientists and scholars of constitutional law. Much...

In his 1897 essayThe Path of the Law, Oliver Wendell Holmes, Jr., offered an insight familiar to many lawyers and students of law: “For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”¹ Although Holmes’s late nineteenth-century analysis was typically inattentive to the role of women in the legal profession, it was prophetic in its appreciation of extralegal influences on law and the importance of scientific knowledge in judicial decision making. More than sixty-five years...

In his bookSimple Justice, widely considered to be the definitive history of theBrown v. Board of Educationcase, Richard Kluger suggests that Chief Justice Earl Warren’s insertion of footnote 11 into the Court’sBrownopinion was almost an afterthought. According to Kluger’s account, the footnote, which cited several of the social science references included in the plaintiffs’ briefs, was designed merely to add a modicum of support for the chief justice’s response to the psychological musings of the majority opinion inPlessy v. Ferguson. InPlessy, the Supreme Court had proposed that any feelings of inferiority that blacks...

On May 3, 1954, two weeks before issuing its ruling inBrown v. Board of Education, the Supreme Court handed down its decision inHernandez v. Texas, a case in which a Mexican American criminal defendant had challenged the systematic exclusion of Mexican Americans from serving on juries. The evidence revealed that, over a span of twenty-five years, none of the more than 6,000 individuals who had served as jurors in Jackson County, Texas, had ever been of Mexican descent. The state acknowledged the extreme statistical disparity but argued that no discrimination had occurred because Mexican Americans were classified as...

In 1880, the San Francisco Board of Supervisors passed an ordinance that required all operators of laundries in the city to obtain a business permit if their laundries were located in buildings not built of brick or stone. Anyone operating a laundry without a permit could face a fine, jail time, or both. On its face, the law appeared to be neutral and fair; requiring a permit for laundries in wooden buildings, which were common in the city, could be justified on health and safety grounds. But the board’s administration of the law was neither neutral nor fair. About 320...

During a series of individual interviews with three of the nine sitting justices on the Supreme Court, conducted not long after the conclusion of the Court’s 2002–3 term, law professor David L. Faigman posed several questions focusing on the Court’s constitutional fact finding. The three justices—Stephen Breyer, Sandra Day O’Connor, and John Paul Stevens—offered a set of revealing, sometimes incongruous responses to Faigman’s queries, confirming some of his presuppositions about “the haphazard way constitutional facts come to the Court’s attention.”¹ Justice Breyer, for example, cited amicus curiae briefs submitted directly to the Court as a leading source...

As the preceding chapters have demonstrated, scientific evidence has enjoyed an influential but often checkered history in equal protection litigation. Even before the ratification of the Fourteenth Amendment, the courts turned to contemporaneous science to reinforce constitutional theories and values. The typical result, of course, was that science and constitutional interpretation aligned perfectly to support many forms of subordination, whether they involved race, ethnicity, citizenship status, or gender. Notwithstanding the enactment of Reconstruction-era legislation and the addition of the Thirteenth, Fourteenth, and Fifteenth Amendments to the federal Constitution, dominant ideologies of social inequality—scientific racism and social Darwinism, in particular—...