Vice Squad
Wednesday, January 14, 2004
The Supreme Court and Social Science Research

Since note #11 in Brown v. Board of Education, social science research occasionally finds its way into a Supreme Court opinion. In Lawrence v. Texas (the sodomy case), research indicating that laws aimed at specifically homosexual conduct were not of ancient origin was referenced in the opinion of the court. Vice Squad's grand-boss's work on academic freedom was cited in a dissenting opinion by Justice Stevens (note #4) in the June, 2003 library filters case. And in yesterday's roadblock opinion, the majority opinion cited a November, 2003 article in the journal Accident Analysis and Prevention (see page 6 of Justice Breyer's opinion). They are up to date at the Supreme Court!

Yesterday's cited article* concerns reasons why sobriety checkpoints are not used more frequently in the US -- previous research shows that well-publicized checkpoints effectively deter drunk driving. Properly-conducted sobriety checkpoints have been held to be consistent with the Fourth Amendment to the US Constitution, so federal law is not a barrier. According to the article, thirteen states conduct no sobriety checkpoints, however, in most cases because they would violate state law. But many states are unenthusiastic about checkpoints, even though they (1) are legal and (2) appear to be effective at deterring drunk driving. The article seeks to find the reasons for the lack of enthusiasm. This excerpt from the concluding paragraph of the "Discussion" section summarizes the findings:

"In summary, states with and without frequent checkpoints are distinguished by motivational factors and by their approaches to using financial and manpower resources. In the frequent-use states, the motivation for checkpoints comes from a combination of support by task forces, citizen activist groups, police officials who understand the power of checkpoints as a deterrence strategy, and the public. In these states, police resources generally are used efficiently, and various sources of funding are tapped. In states with infrequent checkpoints, available funds often are not sought and too many police officers are used at checkpoints."

The article was cited in yesterday's opinion to defang the potential criticism that roadblocks might unreasonably proliferate if they were found to be constitutional.

So, social science research is cited by the Supreme Court -- but does it actually sway the Court, or is the research just thrown into opinions that are determined on other grounds? Vice Squad thinks that the direct effect of social science research on Court opinions is almost non-existent. Nevertheless, the indirect effect, particularly of a large body of research, might be important. Such a mass of research puts new ideas into the air, and justices breathe the same air as the rest of us (avoid geriatric/Court-based humor here). So, to paraphrase Lord Keynes, it may be that the nine madmen and madwomen in authority are actually distilling their frenzy from the academic scribblings of cloistered social scientists.

*"Why are sobriety checkpoints not widely adopted as an enforcement strategy in the United States?," by James C. Fell, Susan A. Ferguson, Allan F. Williams, and Michele Fields, Accident Analysis & Prevention, Volume 35, Issue 6, Pages 825-1004 (November 2003). I couldn't get a link to work.

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