ARTICLES
JUSTICE HARRY BLACKMUN AND
EMPIRICAL JURISPRUDENCE
STEVEN
R.
SCHLESINGER*
JANET NESSE**
Lawyers and judges should use the scientific method in gathering
certain data, organizing those facts, and progressingfrom one to
another of such facts, but it is quite another thing to create a
science-orientedjurisprudence.I
INTRODUCTION
The judiciary has been reluctant to accept the notion that the physical and social sciences can contribute methodology and information
to legal analysis. 2 With the appointment of Associate Justice Harry
* B.A., 1967, Cornell University; M.A., 1969, Claremont Graduate School; Ph.D., 1973,
Claremont Graduate School; Associate Professor, Department of Politics, The Catholic University of America; Director, Center for Congressional and Governmental Affairs, The Catholic
University of America.
** B.A., 1978, Yale University; J.D. candidate, Marshall-Wythe School of Law, College of
William and Mary.
The authors wish to express their deep appreciation to Kelvin J. Dowd, Nathaniel S. Preston,
and Gertrude J. White for their excellent assistance in the preparation of this article.
1. Markey, Science and Law-Toward a Happier Marriage, 59 J. PAT. OFF. Soc'y 343,
349 (1977). The scientific method is defined as "a method of research in which a problem is
identified, relevant data are gathered, a hypothesis is formulated from these data, and the
hypothesis is empirically tested." THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANCUAGE 1279 (1973).
2. See Loevinger, Jurimetrics-TheNext Step Forward, 33 MINN. L. REv. 445 (1949), for a
discussion by one of the first authors to suggest that the legal community use the scientific
method or empirical approach in the investigation of legal problems. The author contended that
traditional jurisprudence was based upon speculation, supposition, and superstition, a method
that had failed to define a workable approach to socio-legal problems. He advocated instead the
scientific investigation of legal problems, an approach he termed "jurimetrics," which would
establish an institutional method for growth and change within the law. Id. at 483, 489.
The empirical approach is far from new. Its first real application appears in the famous "Brandeis briefs," a milestone in the incorporation of empirical data into constitutional adjudication.
See Cahn, Jurisprudence, 30 N.Y.U. L. REv. 150, 153 (1955); Moynihan, Social Science and the
Courts, 54 PUB. INTEREST 12, 14 (1979). Brandeis submitted the first of these briefs in a case
challenging state regulation of the maximum working hours for women. Muller v. Oregon, 208
U.S. 412 (1908). The Muller brief contained sociological and economic data gleaned from reports of public investigatory committees, books and articles written by medical authorities and
social workers, and legislative schemes in the United States and abroad. Moynihan, supra, at
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Blackmun in 1971, however, the Supreme Court gained a member
well-versed in the scientific method. 3 His opinions demonstrate that
the knowledgeable use of empirical data and statistical analysis can
both assist the court in reaching fair adjudicative results and clarify
and add precision to its reasoning.4
Justice Blackmun rejects the use of phrases like "compelling state
interest" and "least drastic alternative" as meaningless and result
oriented. 5 Instead, he advocates the use of precise language and
quantifiable criteria to elucidate the bases of the Court's conclusions. 6 His use of scientific data in the formulation of his legal
analysis, however, illustrates the limitations as well as the advantages
of an empirical-statistical approach to jurisprudence.
The Court's use of social science in constitutional adjudication underscores the critical nexus between law and fact. Supreme Court
14. Brandeis designed these briefs specifically to advocate judicial restraint in overturning legislation by presenting alternative justifications for the regulatory scheme. Id. See also P. ROSEN,
THE SUPREME COURT AND SOCIAL SCIENCE 78-81 (1972).
One commentator observes that the briefs, while excellent vehicles for upholding legislation,
can create logical predicaments when used to advocate the invalidation of a statute, Cahn,
supra, at 153-54. A shrewd lawyer, for example, can prepare a brief in support of almost any
conceivable legislative exercise if the empirical data are sufficient to establish a rational basis for
the statute. Faced with such evidence, a challenger may find it impossible to demonstrate a
nonrational legislative motive. Id.
3. Justice Blackmun graduated from Harvard College with a degree in mathematics. 5 L.
FRIEDMAN, THE JUSTICES OF THE UNITED STATES SUPREME COURT 4 (1978). Upon graduation
from law school, he returned to his home in Minneapolis where he eventually engaged in the
practice of tax law, a specialty noted for its exacting quantitative nature. Id. at 5. For ten years,
he was legal counsel to the Mayo Clinic, in close contact with physicians and medical problems,
thereby gaining insight into the scientific world. Id.
Blackmun once stated: "[Mathematical thinking] is much the same as legal thinking-it
teaches you to be precise and logical." TIME, April 27, 1970, at 20. His approach is quantitiative; he strives to make precise decisions that lead to exact precedential rules. See Illinois State
Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188 (1979) (Blackmun, J., concurring). To achieve his goal, he assesses the empirical data presented and usually bases his judicial
decision upon the scientific conclusion. See, e.g., Castaneda v. Partida, 430 U.S. 382 (1977).
4. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Ballew v. Georgia, 435
U.S. 223 (1978); Castaneda v. Partida, 430 U.S. 482 (1977); Planned Parenthood v. Danforth,
428 U.S. 52 (1976); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U.S. 748 (1976); Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973); Furman v. Georgia, 408 U.S. 328 (1972); McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
Richardson v. Perales, 402 U.S. 389 (1971); Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968),
vacated and remanded, 398 U.S. 262 (1972).
5. Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188 (1979)
(Blackmun, J., concurring) (Illinois Election Code held unconstitutional insofar as it required
independent candidates and new political parties to obtain more than 25,000 signatures in
Chicago). Although Justice Blackmun joined the Court's opinion in Illinois State Bd. of Elections, he voiced his "unrelieved discomfort with what seems to be a continuing tendency in this
Court to use as tests such easy phrases as 'compelling [state] interest' and 'least drastic [or
restrictive] means.'" Id. (brackets and quotations in original).
6. Id.
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JUSTICE BLACKMUN
opinions should be based upon factual considerations, not the vague,
unsubstantiated prejudices and personal opinions of the justices. 7 In
1961, for example, the Supreme Court imposed the exclusionary rule
on the states, prohibiting the use of relevant evidence obtained in
contravention of the Constitution, in large measure because a majority of the justices believed that the rule would have a deterrent effect
on police misbehavior.' As even the current defenders of the rule
admit, however, the rule is not a generally effective deterrent. 9 The
Court can avoid such results if it utilizes scientific data as the basis for
adapting the Constitution to the exigencies of contemporary society. 10
Nevertheless, there are limitations inherent in the empiricalstatistical approach. In some fields, particularly the social sciences,
studies of identical subjects frequently reach contradictory results."
Also, as scientific knowledge in rapidly changing fields advances, the
consensus of the profession" may change abruptly. 12 Although con-
7. See generally Schlesinger & Wilson, The Supreme Court: Fact-free Justice, 12 AM.
SPECTATOR
18 (1979).
8. Mapp v. Ohio, 367 U.S. 643, 656 (1961) (deterrent effect of exclusionary rule is only
effective way to ensure enjoyment of right to be free from unreasonable searches and seizures).
9. See S. SCHLESINGER, EXCLUSIONARY INJUSTICE: THE PROBLEM OF ILLEGALLY OBTAINED EVIDENCE 50-60 (1977); Canon, The Exclusionary Rule: Have Critics Proven That It
Doesn't Deter Police?, 62 JUDICATURE 398 (1979); Schlesinger & Wilson, Property, Privacy and
Deterrence: The Exclusionary Rule in Search of a Rationale, 18 DUQ. L. REV. 225, 237-38
(1980); Schlesinger, The Exclusionary Rule: Have Proponents Proven that It Is a Deterrent to
Police?, 62 JUDICATURE 404 (1979).
10. Justice Blackmun views adaptation as essential to adjudication. 68 U.S. NEWS & WORLD
REP. 48 (1970). He has said that "[n]o body of men two hundred years ago could determine
what our problems are today. That is, I suppose, what we have courts for ... to construe the
Constitution in light of current problems." Id.
11. For example, researchers have reached contradictory conclusions concerning the deterrent effect of the death penalty. See VAN DEN HAAG, PUNISHING CRIMINALS: CONCERNING A
VERY OLD AND PAINFUL QUESTION (1975); Ehrlich, The Deterrent Effect of Capital Punishinent, 65 AM. ECON. REV. 397 (1975); Symposium, Statistical Evidence on the Deterrent Effect
of Capital Punishment, 85 YALE L.J. 164 (1975) (editors' introduction).
Social scientists have disagreed over the years about the effects of pornographic materials on
individuals. See
CLOR, OBSCENITY AND PUBLIC M1ORALITY: CENSORSHIP IN A LIBERAL SOCIETY (1969); SUNDERLAND, OBSCENITY, THE COURT, THE CONGRESS, AND THE PRESIDENT'S
COMMISSION (1974).
12. Professor Edmund Cahn writes:
[S]ince the behavioral sciences are so very young, imprecise, and changeful, their
findings have an uncertain expectancy of life. Today's sanguine asseveration may be
cancelled by tomorrow's new revelation-or new technical fad. It is one thing to
use the current scientific findings, however ephemeral they may be, in order to
ascertain whether the legislature has acted reasonably in adopting some scheme of
social or economic regulation .... It would be quite another thing to have our
fundamental rights rise, fall, or change along with the latest fashions of psychological literature.
Cahn, supra note 2, at 167.
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stitutional interpretation should be flexible enough to evolve with
changing perceptions, consistent application of the law would be impossible if the law were to change as rapidly as scientific opinion in
various fields. Furthermore, studies often contain biases generated by
the views and preconceived notions of the researcher. 13 Although a
conscientious researcher does not falsify results deliberately, his own
prejudices and perspectives color the choice of subjects, the phrasing
of questions, and ultimately, the conclusions that are reached. 14 Finally, the judiciary must evaluate the legal importance of a study that
the scientist has determined to be statistically significant. 15 Unless
the results of a study are legally significant, they cannot justify a
16
change in constitutional interpretations or public policy.
This article focuses on Justice Blackmun's opinions as the vehicle
for an examination of the role of empirical data and statistical analysis
in constitutional adjudication. The cases are represented in three
categories according to the purposes for which Justice Blackmun has
used scientific evidence: simple proof of compliance or noncompliance
with a constitutional mandate; establishment of the factual context for
the application of constitutional rules; or assistance in making a constitutional "judgment call" when other bases for decision give no firm
guides. Cases in all three categories are reviewed in each of the main
sections into which this article is divided. Section One examines the
proper, and consequently successful, use of statistical and empirical
13. In fact, social science is rarely dispassionate. Social scientists frequently are affected by
the politics that their work necessarily involves. Id. at 19.
14. See id.
15. See Hallock, The Numbers Game-The Use and Misuse of Statistics in Civil Rights Litigation, 23 VILL. L. REv. 5, 11 (1977).
16. See Craig v. Boren, 429 U.S. 190 (1976) (Oklahoma statutory scheme prohibiting sale of
"nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18
constituted gender-based discrimination that denied equal protection to males 18-20 years of
age). Cf. notes 32-46 & accompanying text infra.
In United States v. Test, 550 F.2d 577 (10th Cir. 1977), defendants presented evidence that
established a very high statistical probability that voter registration lists contained comparatively
smaller proportions of Chicanos and blacks than their proportions in the general voting-age
population. The court stated that a "mathematical conclusion that the disparity between these
two figures is 'statistically significant' does not, however, require an a priori finding that these
deviations are 'legally significant' .... Id. at 584. The court relied upon Swain v. Alabama,
380 U.S. 202 (1965), for the proposition that a prima facie case of systematic jury exclusion was
not established merely by demonstrating a disparity of as much as 16%. In Test, the maximum
disparity demonstrated between blacks and Chicanos in the voting-age community and those on
the master jury rolls was approximately 4%. Id. at 587. Because this figure was well below the
disparity established in Swain, the court upheld the district court's ruling that the defendant
had failed to establish a prima facie case of systematic exclusion. In the absence of such a prima
facie case, the court concluded that the district court properly accepted the government's explanation and averments of good faith in rebutting the statistical evidence of disparity. Id.
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JUSTICE BLACKMUN
data. Section Two considers cases in which the results exemplify
some of the pitfalls of pursuing this mode of decisionmaking and the
danger of misapplication of statistical analysis and empirical studies.
Section Three examines those instances in which Justice Blackmun
abandoned scientific data as a guide to judicial decisionmaking and
evaluates the propriety of this abandonment.
I. APPROPRIATE USES OF EMPIRICISM
IN CONSTITUTIONAL ADJUDICATION
Despite judicial reluctance to utilize statistical data in legal
analysis, 1 7 empiricism is not foreign to Supreme Court opinions.' 8
Indeed, the Court's use of empirical data in the early desegregation
cases1 9 has been the subject of considerable controversy. Commentators have debated not only the validity of the data utilized, 20 but
the extent to which the data actually influenced or should have influenced the decisions in those cases. 21 The debate has centered upon
17. See note 2 & accompanying text supra.
18. Indeed, it was a fact-laden Brandeis brief that saved the statute in Muller v. Oregon,
208 U.S. 412 (1908). In Muller, the Court upheld maximum working hours provisions for women, because the "Brandeis brief" presented in support of the legislation demonstrated a "real
and substantial" relationship between legislative means and ends. Id. at 412, 419. Other early
cases in which factual considerations of the means-ends relationship resulted in validating the
statutory scheme include McLean v. Arkansas, 211 U.S. 539 (1909) (upholding state regulation
of coal miners' wages), and Bunting v. Oregon, 243 U.S. 426 (1917) (upholding statutory limitation of maximum 10-hour working day for manufacturing employees).
Typically, however, the Court was skeptical about empirical data because it could be manipulated and therefore was unreliable. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 436
(1978). See also L. PFEFFER, THIS HONORABLE COURT 259 (1965); Adkins v. Children's Hosp.,
261 U.S. 525, 560 (1923) (reports and expert opinions on minimum wage laws found "interesting
but only mildly persuasive").
19. Brown v. Board of Ed., 347 U.S. 483 (1954); Bolling v. Sharpe, 347 U.S. 497 (1954).
The Court in Brown found that the data supported the contention that segregation under color
of law tends to retard the educational development of minorities, and to deprive them of the
interactional benefits they would receive in a racially mixed school system. 347 U.S. at 494.
20. See generally P. ROSEN, THE SUPREME COURT AND SOCIAL SCIENCE (1972). Compare
Garfinkel, Social Science Evidence and the School Segregation Cases, 21 J. POL. 37 (1959) and
Clark, The Desegregation Cases: Criticism of the Social Scientist's Role, 5 VILL. L. REv. 224
(1960) with Van den Haag, Social Science Testimony in the Desegregation Cases-A Reply to
Professor Kenneth Clark, 6 VILL. L. REv. 69 (1961).
21. One commentator maintains that the Court was, in fact, convinced of the "obvious"
effects of segregation on black children and thus did not base its decision upon the experts'
attempts to demonstrate the effects "scientifically." Cahn, supra note 2, at 159-60. Whether
these cases are to be explained solely by reference to ethical principles, see Yudof, Equal
Educational Opportunity and the Courts, 51 TEx. L. REv. 411, 446 (1973), or- whether "legal
rationality in the Brown case was formally and deliberately expressed as empiricism, rejecting
the ideology and mythology implicitly contained in the Plessy case," P. ROSEN, supra note 20,
at 156, the social science data probably sharpened the Court's realization that separate facilities
are morally and ethically wrong, at least in part because they are intrinsically unequal. See
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whether the Court substituted empiricism for philosophical or logical
analysis by failing to make an initial value judgment regarding the
22
underlying constitutional principle.
The controversy over the use of empiricism in legal analysis has not
deterred Justice Blackmun from utilizing the empirical approach in
several of his opinions. Indeed, such cases as Doe v. Bolton, 23 Castaneda v. Partida,24 Virginia Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 25 and Ballew v. Georgia,26 illustrate several
appropriate uses of empiricism in constitutional decisionmaking.
A. Simple PNoof of Compliance or Noncompliance
with Constitutional Mandates
In those instances in which the Court has made an initial statement
about the scope of a- constitutional provision, a correctly applied
quantitative approach serves as an accurate measure of the extent to
which a statute complies with the constitutional mandate. For example, in Doe v. Bolton, 27 Justice Blackmun utilized data regarding the
relative quality of hospital medical care to measure the reasonableness of a Georgia statute requiring that abortions be performed in
hospitals accredited by the Joint Commission on Accreditation of
Hospitals (JCAH). 28 Because the data demonstrated an insufficient
Clark, The Social Scientists, The Brown Decision and Contemporary Confusion, in ARGUENT:
THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN V. BOARD OF EDUCATION OF
TOPEKA, 1952-55 (L. Friedman, ed., 1969).
22. See Cahn, supra note 2, at 157-58 ("1 would not have the constitutional rights of
Negroes-or of other Americans-rest on such flimsy foundation as some of the scientific demonstrations in these records . . . . "). Another commentator suggests that Brown and its progeny need not rest upon any causal relationship between segregation and harm. Rather, the
constitutional prohibition against segregation is sufficiently justified as an interpretative judgment of social science. Thus, the conclusion that segregation is degrading to any minority is an
interpretative fact that requires no evidence. Unlike causal judgments of social science, interpretative judgments are based upon judgments of convention, framed by community standards.
Dworkin, Social Sciences and ConstitutionalRights-the Consequences of Uncertainty, 6 J. LAW
& ED. 3, 5-6 (1977). See also Doyle, Can Social Science Data Be Used in Judicial Decisioninaking?, 6 J. LAw & ED. 13, 16 (1977) (Brown not decided on basis of social science studies but on
fundamental invalidity of segregating distinct class from other people).
23. 410 U.S. 179 (1973). See notes 27-31 & accompanying text infra.
24. 430 U.S. 482 (1977). See notes 32-49 & accompanying text infra.
25. 425 U.S. 748 (1976). See notes 51-60 & accompanying text infra.
26. 435 U.S. 223 (1978). See notes 61-75 & accompanying text infra.
27. 410 U.S. 179 (1973).
28. GA. CODE § 26-1202(b) (1978). The JCAH is a private organization that investigates
hospitals and accredits them if they meet certain standards for medical care. Doe v. Bolton, 410
U.S. 179, 193 n.12 (1973). Besides the accreditation requirement, the Court considered aspects
1980]
JUSTICE BLACKMUN
correlation between the JCAH accreditation requirement and the
state's valid objective to ensure safe abortions, Justice Blackmun concluded that the procedural requirement was not rationally related to
the purposes for which the statute was created. The requirement,
29
therefore, violated the patient's constitutional right to privacy.
Although Justice Blackmun's use of the data in Doe is appropriate,
the opinion's force is undercut by his failure to adduce any of the
statistical evidence considered. In reaching his conclusion, Justice
Blackmun merely noted that the Court had considered a "mass of
data" purporting to demonstrate that facilities other than JCAH hospitals were capable of performing safe abortions. 30 According to his
analysis, the persuasiveness of these data was not overcome by evidence that only JCAH hospitals adequately met the state's interest in
ensuring safe medical care.3 1
Justice Blackmun's conclusory use of data in Doe contrasts sharply
with his careful articulation of empirical data in other cases such as
Castaneda v. Partida.3 2 Castaneda involved a challenge to a Texas
grand jury selection process on equal protection grounds. Castaneda
and other cases involving allegations of discrimination are particularly
susceptible to empirical analysis because such an approach exposes
numerical disparities among distinct classes of persons under the
law. 33 Such disparities then serve as direct proof of a statute's com-
of the Georgia law that required the patient to be a Georgia resident and allowed an abortion to
be performed only when a duly licensed Georgia physician deemed the procedure necessary, as
determined by "his best clinical judgment." The Court held that the requirement that a physician use "his best clinical judgment" was not unconstitutionally vague, id. at 191-92, but invalidated the statute's residency requirement as violative of the privileges and immunities clause.
Id. at 200. In addition, the Court considered two other procedural aspects of the statute. The
first required advance approval by a three-physician hospital abortion committee before an abortion could be performed. The second required confirmation by two additional physicians. Thus,
the Georgia statute required that any abortion be approved by a total of six physicians, including the patient's own. Id. at 199. Justice Blackmun invalidated both methods of confirmation as
unduly restrictive of the patient's rights without considering any empirical evidence regarding
the incidence of disagreement between the attending physician and the consultants over the
propriety of the abortion. He reasoned that no other voluntary medical or surgical procedure
required multiple consultation; therefore, it should not be required for a procedure so directly
related to the constitutionally protected right of privacy. Id. at 196-99. Thus, according to
Justice Blackmun's reasoning, any empirical evidence was irrelevant.
29. Id. at 194.
30. Id. at 195.
31. Id.
32. 430 U.S. 482 (1977).
33. Traditionally, the Court has closely scrutinized legislation that abridged the rights of
groups on the basis of race or national origin. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356
(1886). Nevertheless, in Washington v. Davis, 426 U.S. 229 (1976), the Court established the
principle that disproportionate impact, without proof of discriminatory intent, would not trigger
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pliance or noncompliance with the constitutional guarantee of equal
34
protection.
The defendant in Castaneda, a Mexican-American who had been
convicted of a criminal offense in a Texas district court, alleged that
he had been denied equal protection because of the gross underrepresentation of Mexican-Americans on county grand juries. 3 5 As a
Mexican-American, the defendant was entitled to the same strict
scrutiny 3 6 of the legislation establishing the grand jury selection process as that traditionally given to racial minorities in other contexts. 3 7 Thus, in order to prove that an equal protection violation
strict scrutiny of state action. Id. at 239-40. The Court, however, recognized that intentional,
invidious discrimination may be inferred in certain instances from statistical data reflecting the
disproportionate impact of a facially neutral law. For example, in Yick Wo, under a municipal
ordinance that prohibited construction of wooden laundries without a license, all but one of 80
non-Chinese applicants were granted licenses, while none of the Chinese applicants were
granted licenses. Although no racial criteria were written into the license requirement, the
Court could find no plausible explanation for the disparity other than "hostility to the race and
nationality to which the petitioners belong." Id. at 374.
34. A sufficient statistical disparity will establish a prima facie case of intentional discrimination and thus will trigger strict scrutiny of the government's action. Consequently, the burden
of proof will shift from the plaintiff to the government to explain the disparity on nondiscriminatory grounds. Washington v. Davis, 426 U.S. 229, 241 (1976). The Court in Washington,
however, did not indicate how great a statistical disparity was required to trigger strict scrutiny.
See Castaneda v. Partida, 430 U.S. 482 (1977); notes 35-49 & accompanying text infra.
35. 430 U.S. at 486. After exhausting all state remedies upon a claim that discrimination
toward Mexican-Americans in grand jury selection constituted reversible error, the defendant
filed a petition of habeas corpus in federal district court. The district court held that the state
had adequately rebutted the defendant's prima facie showing of discrimination. Castaneda v.
Partida, 384 F. Supp. 79 (S.D. Tex. 1974). The district court reasoned that a substantial deviation between the number of Mexican-Americans actually on the grand jury and the number of
Mexican-Americans in the relevant general population, eligible to serve, was tolerable because
three out of the five grand jury selection commissioners were Mexican-American, and the selection system permitted consideration of subjective factors. Id. at 90. The court found it unlikely
that the commissioners would discriminate against their own people. Id. In addition, the court
found that a broader disparity could be tolerated on the facts of the ease, because the Texas
selection process allowed the Mexican-American governing majority to favor their own group
when selecting grand jurors. Id. The district court was reversed by the court of appeals. 524
F.2d 481 (5th Cir. 1975), aff'd, 430 U.S. 482 (1977).
36. See note 33 supra.
37. The Court applies a strict scrutiny analysis to cases of alleged discrimination on the basis
of alienage, or national origin, as well as race. In Hernandez v. Texas, 347 U.S. 475 (1954), a
fourteenth amendment challenge to a Texas jury selection plan, the Court stated that a class
that is distinguishable on grounds other than race is nevertheless entitled to the same strict
scrutiny of legislation as are classes identifiable by their race. Id. at 478. Thus, in Hernandez,
the defendant's initial burden was to prove that persons of Mexican descent constituted a group
separate and distinct from the "whites" in the community. Id. at 479. On the basis of evidence
demonstrating several factual distinctions between the two groups, the Court concluded that
persons of Mexican descent constituted an identifiable class singled out for distinct treatment.
Id. at 480. Although decided under an equal protection claim, the Hernandez requirements of a
distinct, identifiable group have been applied in cases involving fifth and sixth amendment
1980]
JUSTICE BLACKMUN
had occurred in the grand jury selection process, the defendant
needed to demonstrate that the process employed resulted in substantial underrepresentation of Mexican-Americans on grand juries. 38
Under the established legal standard, the degree of underrepresentation could be proved by comparing the proportion of MexicanAmericans in the total population to the proportion called to serve as
grand jurors over a significant period of time. 39
Justice Blackmun, writing for the majority, observed that only 39%
of those summoned to grand jury duty were Mexican-American, despite the fact that this group comprised 79.1% of the county's population. 40 Justice Blackmun utilized a binomial distribution to ascertain
the degree to which the results obtained by the grand jury selection
commission deviated from expected random values. 4 1 He posited
that roughly 79.1% of those persons selected for grand jury duty
would have been Mexican-American if the grand jury selection process were random, given that 79.1%" of the relevant population was
Mexican-American. 4 2 The actual figure of 39% indicated a result that
43
could not occur by chance.
A scientist will question a difference between actual figures and
expected values that is greater than two or three times the standard
challenges. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (jury selection plans must
not "systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.'); United States v. Test, 550 F.2d 577, 585 & n.7 (10th Cir. 1976)
(requirement of identifying distinctive group termed "cogniiability" requirement). The Court in
Castaneda stated that it was no longer disputable that Mexican-Americans comprise a dearly
identifiable class. 430 U.S. at 495.
38. Castaneda v. Partida, 430 U.S. at 494 (citing Washington v. Davis, 426 U.S. 229, 241
(1976)). In the context of a challenge to a jury selection process, this standard is the equivalent
of "strict scrutiny" in other types of challenges based on the fourteenth amendment. Id. at 494
n.13.
39. Id. at 494.
40. Id. at 495-96, 496 nn.16 & 17. Although the district court was unwilling to accept the
substantial statistical disparity as conclusive evidence of discriminatory intent, see note 35
supra, Justice Blackmun determined that discriminatory intent was the likely cause of the discrepancy. 430 U.S. at 495. This difference of opinion exemplifies the tension that exists between
law and science.
41. Id. at 496 n.17. This model is the classic method of analyzing situations of random
selection. See Finkelstein, The Application of Statistical Theory to the Jury Discrimination
Cases, 80 HAIv. L. REv. 338, 353-56 (1966). For a non-technical discussion, see Nagel, The
Meaning of Probability, in 2 THE WORLD OF MATHEMATICS 1398 (J. Newman, ed. 1956). For
purposes of this discussion, it is unnecessary for the reader to understand the theory of binomial
distribution. Its importance lies in the fact that it is a statistical tool to measure random selection and is used in the legal realm to establish racial discrimination.
42. Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977).
43. Id. Chief Justice Burger criticized the statistics for referring to gross population figures
rather than persons eligible to serve on grand juries. Id. at 594-07 (Burger, C.J., dissenting).
Justice Blackmun countered the criticism with figures that excluded minors and illiterates, but
demonstrated a discrepancy of 65% eligible to 39% selected. Id. at 488 n.8.
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deviation. 4 4 The data, in Castaneda, collected over an eleven-year
period, reflected a divergence of twenty-nine standard deviation values. 45 Because the likelihood that this result occurred by chance was
less than one in 10140, Justice Blackmun concluded that the wide
numerical discrepancy established a prima facie case of intentional
46
discrimination.
Justice Blackmun found support for his finding of intentional discrimination in the highly subjective nature of the state's "key man"
system of selecting grand jurors. 47 Moreover, he rejected the district
court's theory that a governing majority of elected Mexican-American
officials was sufficient evidence to rebut the prima facie presumption
of purposeful discrimination. 4 8 Thus, the system did not comply
with the constitutional prohibition against trying a defendant of a particular race or national origin under an indictment issued by a grand
jury on which members' of his class have been systematically underrepresented. 4 9
B. Establishing the Factual Context for Constitutional Rules
In addition to proving compliance or noncompliance with a con-
stitutional provision, empirical data may establish a factual setting
within which the Court can ascertain the applicability of a constitutional provision. Thus, even before the Court makes a value judg-
44. Id.
45. Id. The data for the two and one-half year period during which the district judge supervised the selection period reflected a disparity between expected and observed values of more
than 12 standard deviations. Id.
46. Id. at 496. For a similar example of this use of empirical data, see Yick Wo v. Hopkins,
118 U.S. 356 (1886), and note 33 supra.
47. Under Texas' "key man" system for selecting grand jurors, the state district judge appointed jury commissioners, who in turn selected prospective jurors from different portions of
the county. The district judge then tested the qualifications of the selected jurors, who, in
addition to being citizens of Texas and the county in which they were to serve, must have been
qualified to vote, literate, "of sound mind and good moral character," and have had no prior
felony conviction or pending indictment. Castaneda v. Partida, 430 U.S. at 485. Justice
Blackmun noted that, although the constitutionality of this system had been accepted by the
Court, it nevertheless was susceptible to abuse in its application. Id. at 497. Justice Blackmun,
however, did not delineate what opportunities for subjective discrimination in the "key man"
system were particularly troublesome in this case.
48. The district court refused to believe that, because Mexican-Americans comprised a governing majority, members of the Mexican-American community had purposefully or intentionally discriminated against themselves. 384 F. Supp. at 91. Justice Blackmun rejected the district
court's behavioral presumption as "unwise," adding that only proof of the commissioners'
method of operation would rebut the statistical evidence of discriminatory intent, 430 U.S. at
499-500. Because the state failed to supply this evidence, the Court affirmed the court of appeals' finding of a denial of equal protection. Id. at 501.
49. Id. Hernandez v. Texas, 347 U.S. 475, 477 (1954).
JUSTICE BLACKMUN
415
ment or engages in legal analysis, statistical data may establish the
framework in which the analysis can be made. 50
Justice Blackmun's opinion in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,5 1 illustrates the use of empiricism in this context. In that case, the consumers of prescription drugs
challenged the constitutional validity of a Virginia statute that provided that a licensed pharmacist was guilty of unprofessional conduct
if he advertised the prices of prescription drugs. 52 Consequently,
53
the statute totally prohibited the advertising of price information.
Although the Court had indicated previously that commercial speech
that served the public interest was not wholly beyond the protection
of the first and fourteenth amendments, 5 4 Virginia Board of Pharmacy compelled the Court to address squarely the question whether
the first amendment also protected commercial speech that proposed
55
a purely commercial transaction.
Justice Blackmun, assuming that the right to advertise was protected by the first amendment, first considered whether drug consumers could assert that right. He marshalled facts about the value of
price information to the consumer, including stipulations that indicated that widely varying drug prices existed throughout the United
States. 56 On the basis of these considerations, Justice Blackmun
reasoned that, if the right to advertise were protected, the consumer
57
as well as the advertiser could assert the right.
Justice 31ackmun next utilized statistical data to determine whether
the particular type of speech involved in the case merited first
amendment protection. Statistics indicated that the poor, the sick,
and the elderly spent a disproportionate amount of their income on
50. In contrast, the Court in Castaneda used empiricism to prove noncompliance with the
previously established constitutional mandate that the process of grand jury selection may not
exclude otherwise eligible persons from jury service solely because of their national origin.
Hernandez v. Texas, 347 U.S. 475 (1954).
51. 425 U.S. 748 (1976).
52. Id. at 749-50.
53. Id. at 752.
54. Id. at 760. In Bigelow v. Virginia, 421 U.S. 809 (1975), the Court reversed a conviction
for violation of a Virginia statute that made the circulation of any publication that encouraged or
promoted the procuring of abortions in Virginia a misdemeanor. The Court, however, in describing the nature of the advertisement, characterized it as doing "more than simply propos[ing] a commercial transaction. It contained factual material of clear 'public interest.' " Id. at
822.
55. Justice Blackmun succinctly framed the communication involved: "I will sell you the X
prescription drug at the Y price." Virginia Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. at 761.
56. Id. at 754 & n.11.
57. Id. at 757.
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prescription drugs but were the least able to learn by comparative
shopping where their scarce income would be best spent. 58 These
figures formed the basis of the discussion of the consumer's interest
in the free flow of commercial information that, in conjunction with
other societal interests, outweighed the state's justifications for the
advertising ban. 59 Thus, rather than merely engaging in a purely
theoretical discussion of first amendment protection, Justice
Blackmun used empirical data to assess the societal impact of the advertising ban and to provide a concrete basis upon which to reach a
decision.60
C. Making a Constitutional "Judgment Call"
Occasionally, the Court is required to make a constitutional judgment call. In those instances, empirical data may enlighten the
Court's decisionmaking by assisting the Court to draw a line where
no clear line otherwise exists. Justice Blackmun's opinion in Ballew v.
Georgia 6 ' exemplifies this approach. In Ballew, Justice Blackmun
analyzed studies of group interaction and statistics on the effects of a
reduction in group size to determine that juries of fewer than six
members failed to preserve the right to trial by jury guaranteed by
62
the sixth and fourteenth amendments.
58. Id. at 762-63, 763 n.18.
59. Id. at 770. Thus, Justice Blackmun invalidated the statute on the grounds that an absolute prohibition of advertising was beyond the scope of legitimate legislative authority. Id. This
holding, however, did not prevent the state from regulating commercial speech in other ways;
the Court noted that regulation of the time, place, and manner of advertising was permissible.
Id. at 771.
60. In Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Justice Blackmun's majority invalidated a state bar association's prohibition on price advertising by attorneys. Justice
Blackmun cited empirical evidence gathered by the American Bar Association demonstrating
that individuals often do not seek legal advice because of a fear of high fees and because of a
lack of knowledge of which lawyers are competent to handle their problems. Id. at 370 nn.22 &
23. Thus, Justice Blackmun used data in Bates in much the same way as he did in Virginia
Board of Phannacy-to establish the societal impact of the advertising ban on the "consumer"
of legal services. He concluded that the adverse effects of the ban, not only on the consumer,
but on the legal profession, outweighed the state's interest in the prohibition. Id. at 383.
61. 435 U.S. 223 (1978). The petitioner, a theater manager, was charged with violating a
Georgia obscenity statute for showing the film "Behind the Green Door." The offense was a
misdemeanor, although the right to trial by jury attached because the maximum penalty for
violation of the statute, as it existed at the time of the offense, exceeded six months imprisonment. Id. at 229. After a jury of five persons had been selected, the petitioner moved to have
the court impanel a jury of 12. Id. at 226. The petitioner argued that, in an obscenity trial, the
sixth and fourteenth amendments required a 12-member jury to assess adequately the contemporary standards of the community. The motion was denied, and the petitioner was found guilty
by a five-member jury. Id. at 227.
62. Id. at 239.
1980]
JUSTICE BLACKMUN
In this case, the empirical data did more than merely prove compliance or noncompliance with a constitutional mandate, as in Castaneda v. Partida.63 The sixth amendment guarantees an accused
the right to trial by jury, but neither the Constitution nor judicial
precedent prior to Ballew established clearly how the right was to be
preserved. The empirical data presented in Ballew permitted the
Court to set a limit beyond which it found the purpose and function
of the jury could be seriously impaired. Indeed, the empirical studies
played a significant role in the formulation of the standard and,
thereby, in the definition of the constitutional mandate.
In Williams v. Florida,64 decided seven years before Ballew, the
Court had held that six-person juries were constitutional. The Court
in Williams found that the essential purpose of a jury, prevention of
government oppression, required that the jury be of sufficient size to
promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross section of the community. 6 5 Without developing any compelling rationale to justify its
finding, the Court determined that a jury of six met these requirements. 66
After the 1970 Williams decision, numerous scholarly works raised
serious concerns about the wisdom and constitutionality of a reduction to fewer than six jurors.6 7 Ballew presented to the Court the
question of just such a reduction.6 8 In addressing the question, Justice Blackmun analyzed empirical data that suggested that the effec69
tiveness of group deliberation declined with decreasing jury size.
Ultimately, a reduction in jury size would lead to inaccurate factfinding and incorrect application of community common sense to the facts
of a case. 70 The data also suggested that the accuracy of the results
became more doubtful as jury size diminished; a jury size of six to
63. 430 U.S. 482 (1977).
64. 399 U.S. 78 (1970).
65. Id. at 100. Justice White, writing for the majority, stated that a jury's purpose, to prevent government oppression, was attained by community participation and the application of
common sense, both of which required some minimum size and insulation from pressures. Id.
66. Id. The Court viewed the number 12 as little more than an historical accident, unrelated to the essential purposes of juries. Id. at 89-90. Thus, Justice White concluded that a
jury's functions could be fulfilled by six members. Id. at 100.
67. Ballew v. Georgia, 435 U.S. 223, 231 n.10 (1978). Justice Blackman stated that the
Court had considered the studies carefully in Baliew, because they provided "the only basis,
besides judicial hunch," for the decision that juries of less than six persons did not fulfill the
purposes of the sixth amendment guarantee. Id.
68. Id. at 226.
69. Id. at 232.
70. Id. The data offered several reasons for this positive correlation: 1) members are less
likely to make critical contributions in a smaller group; 2) juries are less likely to have a suffi-
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eight persons would minimize the risk that an innocent person would
be convicted and that a guilty person would go free. 7 1 The studies
indicated further that minority viewpoints were less likely to be rep-
resented on smaller juries. 72 Finally, research that evidenced little
difference in the operation of large and small juries may have been
73
subject to methodological problems that cast doubt on the results.
Justice Blackmun acknowledged that the studies did not identify
precisely the point at which a jury would no longer be able to fulfill
the functions set forth in Williams. 74 Thus, although Justice
Blackmun reaffirmed the Williams holding on the basis of empirical
data, he concluded that a further reduction in size would threaten the
75
interests protected by the sixth amendment.
As demonstrated by the foregoing analysis, a statistical approach in
constitutional adjudication may be utilized not only in determining
the degree to which a statute complies with a constitutional mandate,
but in establishing the framework within which an analysis can be
made and in defining the mandate itself. In all three contexts, the use
of empirical data enhances the Court's ability to reach fair individual
results while determining questions of broad, judicial applicability.
II.
PROBLEMS IN THE APPLICATION OF EMPIRICAL DATA AND
STATISTICAL ANALYSIS TO JUDICIAL DECISIONMAKING
The opinions of Justice Blackmun considered in this section illustrate that any assessment of empirical data or use of statistical analysis
cient number of members to remember essential pieces of evidence as they decrease in size,
because jurors are not permitted to take notes; 3) biases of the members are less likely to be
overcome in a smaller group; and 4) the advantages of group interaction and decisionmaking
diminish as the size of the group diminishes. Id.
71. Id. at 234.
72. Id. at 236.
73. Id. at 237.
74. Id. at 239. He noted, however, that the data raised "substantial doubt" about the reliability of juries of less than six members.
75. Id. at 242-43. Justice Powell noted that neither the data cited in Justice Blackmun's
opinion nor the studies' methodologies had been subjected to cross-examination, implying that if
there were problems with the studies or if contradictory evidence existed, these factors should
be examined at trial, with all available evidence weighed as part of the factfinding process. Id.
at 246 (Powell, J., concurring in the judgment). The difficulty arises in part because lawyers and
judges, for the most part, are unfamiliar with the use of empirical data and may ignore important studies that could contribute to a just disposition of a particular controversy. The usefulness
of an order to remand for further consideration at the trial level emerges as one possible
method of ensuring that all pertinent evidence is considered. This would appear to have been
the desirable recourse in Ballew, and Justice Blackmun's failure to order a remand stands as a
failure to extend the value of empirical analysis to its logical conclusion.
198o]
JUSTICE BLACKMUN
requires that the Court be sensitive to the inherent limitations of
empiricism as a guide to or a basis for judicial decisionmaking. The
validity of any decision based on empirical data or statistical analysis
depends on whether the Court has been objective and impartial in its
assessment of the information and the analysis. The Court also must
beware of undue reliance upon empiricism when a decision requires
an evaluation of the interests at stake in light of constitutional principles.
If the ultimate decision in every case is not grounded in sound,
principled jurisprudence, the rights of individual human beings may
be governed by computer surveys and mathematical formulas. When
a constitutional decision rests upon current scientific data rather than
logic or principle, the decision is subject to change with every new
survey or scientific advance. Although adaptation of the Constitution
to changing societal mores and attitudes may be desirable, the inconsistency that would result from keeping up with scientific advances
would be intolerable.
A. Simple Proof of Compliance or Noncompliance
with Constitutional Mandates
The fundamental due process right to a hearing generally includes
76
the right to confront and cross-examine adverse witnesses.
Nevertheless, the Supreme Court has held that, in certain instances,
limitation or even total denial of this right does not violate procedural
due process. For example, in Richardson v. Perales,77 Justice
Blackmun, writing for the Court, indirectly limited the right to confrontation and cross-examination. 78 Claimant Perales had failed to
avail himself of his right to subpoena the physicians who had prepared medical reports introduced by the government at Perales' social security disability benefits hearing. 79 Justice Blackmun agreed
with the lower court that Perales could not then complain that he had
80
been denied his right to confrontation and cross-examination.
The remaining question was whether these medical reports, despite
their hearsay character and the fact that the only live testimony contradicted the reports, could constitute "substantial evidence" in sup-
76. See L. ;RIBE, note 18 supra, at 551.
77. 402 U.S. 389 (1971).
78. Id. at 404-05. Because the Court resisted the formulation of a new federal exception to
the hearsay rule, the holding is limited to the facts of the case.
79. Id. at 397.
80. Id. at 404-05.
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port of the hearing examiner's finding of non-disability.8 1
The opin-
ion made certain observations about the character of the preparers of
the reports, the nature of the reports, and the workings of the social
security system that Justice Blackmun accepted as assurance of the
8 2
"underlying reliability and probative value of the reports."
Perhaps because of his own belief in the basic honesty of men of
science and in the humanitarian nature of the medical profession, Jus-
tice Blackmun rejected the possibility of bias or interest in the outcome on the part of the agency medical consultants. 8 3 In this instance, Justice Blackmun found the "specter of questionable credibility and veracity [was] not present." 8 4 The extensive range of examinations to which Perales was subjected revealed "careful endeavor by
the state agency and the examiner to ascertain the truth." 8 5 Justice
Blackmun noted that these were routine, unbiased reports based on
physicians' personal observations pertaining to accepted medical procedures and tests.8 6 Furthermore, Justice Blackmun found that
courts generally have admitted such reports as an exception to the
hearsay rule, because of their reliability and probative value. 8 7 Also,
when reviewing determinations in social security disability hearings,
courts have upheld numerous adverse determinations in which writ88
ten medical reports were the only supporting evidence.
Justice Blackmun considered certain empirical data in his analysis
that appeared to indicate to him that the system functioned fairly. He
observed that sixty-six percent of the 515,938 disability claims processed in 1968 were allowed prior to the hearing stage; and one-third of
81. The substantial evidence test is the usual standard of review of administrative findings.
Under this formula, findings of fact will be deemed conclusive if supported by substantial evidence. The Court defines substantial evidence as "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
82. 402 U.S. at 405.
83. Id. at 403.
84. Id. at 407. The Court distinguished Goldberg v. Kelly, 397 U.S. 254 (1970), in which
the Court commented that "rudimentary due process" requires "notice and an effective opportunity to defend by confronting any adverse witnesses," on the ground that the Court in Kelly
was concerned with the termination of welfare benefits without prior notice where the credibility and veracity of the testifying social workers and neighbors were at issue.
85. Id. at 404.
86. Id. at 403-04.
87. Id. at 405. See also White v. Zutell, 263 F.2d 613, 615 (2d Cir. 1959); Long v. United
States, 59 F.2d 602, 603-04 (4th Cir. 1932).
88. Justice Blackmun cited numerous cases that reached a similar result. Id. at 405 n.9. See,
e.g., Breaux v. Finch, 421 F.2d 687, 689 (5th Cir. 1970)- Martin v. Finch, 415 F.2d 793, 794
(5th Cir. 1969); Bridges v. Gardner, 368 F.2d 86, 89 (5th Cir. 1966); Dodsworth v. Celebrezze,
349 F.2d 312, 313-14 (5th Cir. 1965); Ber v. Celebrezze, 332 F.2d 293, 296-98 (2d Cir. 1964);
Stancavage v. Celebrezze, 323 F.2d 373, 374 (3d Cir. 1963).
1980]
JUSTICE BLACKMUN
the claims that proceeded to hearing were allowed.8 9 In conjunction
with these claims, there were 320,164 consultant examinations. 90 He
believed that the vast size of the system assured reliability and impartiality in the medical reports of consultants. 91 In addition, he found
that a reversal rate of 44.2% with respect to those federal disability
hearings in which the state agency did not grant benefits attested to
92
the fairness of the system.
Justice Blackmun's conclusion demonstrates undue deference to the
supposed objectivity of medical consultants and to the reliability of
the administrative procedure itself. His opinion failed to keep the
empirical data in proper perspective, resulting in a breakdown of the
distinction between legally and statistically significant data. 9 3 Justice
Blackmun relied upon statistics as support for the proposition that the
integrity and fairness of the procedure were not impaired despite the
admission of hearsay evidence. These statistics, however, proved nothing about fairness or the accuracy of factfinding based on hearsay.
Generally, the absence of testimonial evidence and crossexamination tends to diminish the likelihood of accurate factfinding. 94 As Justice Douglas observed in his dissent: "Those defending a claim look to defense-minded experts for their salvation. Those
who press for recognition of a claim look to other experts." 9 5 He
concluded that the procedure in the Perales case did not provide for
"full and true disclosure of the facts." 96 His reference to the Department of Health, Education, and Welfare's "stable of defense doctors" was indicative of his more skeptical view of the objectivity of
97
physicians who served as consultants to the agency.
89.
90.
91.
92.
Id. at 403 n.7.
Id.
Id. at 403.
Id. at 410 (citing Rock, An Evaluation of the S.S.A. Appeals Process, U.S. DEP'T OF
HEALTH, EDUCATION AND WELFARE, REP. No. 7 at 9 (1970)). Because patients who are dedared disabled do not appeal, an overall reversal rate of nearly one-half does not seem to
demonstrate a high degree of accuracy in the hearing process. The statistic could serve to
reassure only the casual reader; certainly it could not withstand any exacting scrutiny. It seems
that Justice Blackmun almost believes that a scientific profession by necessity creates integrity,
and that a mathematical statistic is intrinsically trustworthy.
93. Cf. note 16 & accompanying text supra.
94. McComiick's HANDBOOK Oe THE LAW OF EVIDENCE § 19, at 43 (2d ed. E. Cleary,
ed., 1972) ("For two centuries, common law judges and lawyers have regarded the opportunity
of cross examination as an essential safeguard of the accuracy and completeness of testimony,
and they have insisted that the opportunity is a right not a mere privilege.'). See also Davis v.
Alaska, 415 U.S. 308, 315-18 (1974); Chambers v. Mississippi, 410 U.S. 284, 295-98 (1973).
95. 402 U.S. at 414 (Douglas, J., dissenting).
96. Id. at 411-12.
97. Id. at 414 (Douglas, J., dissenting). It has been suggested that "Perales may have been a
case where cross examination was especially needed. The medical report that Justice Blackmun
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The opposing views of Justices Blackmun and Douglas illustrate the
need for a neutral evaluation of empirical data. If personal predilections, such as a belief in the unassailable character and pure motives
of agency medical consultants, color the justices' assessment of data,
they may be inclined to apply nonprobative data that gloss over the
real issue in the case. In Perales, the statistics regarding the number
of claims processed and the relatively small percentage that were reversed simply did not relate to the contribution of cross-examination
to accuracy in the result or the likelihood that admission of hearsay
would lead to inaccurate results, nor did the empirical data establish
the reliability of the hearsay at issue in Perales.
B. Establishing the Factual Context for Constitutional Rules
Empirical data may clarify the Court's reasoning by establishing the
factual context within which to determine a constitutional question.
The same data, however, do not necessarily define the solution mandated by the facts. In Regents of the University of California v.
Bakke, 9s for example, empirical data established that the number of
blacks admitted to predominantly white medical schools declined during the years 1955 to 1964. 9 9 By 1970, while the number of blacks in
the total population had increased from 10% to 11.1%, the number of
black physicians remained constant at 2.2% of all physicians. 100 Justice Blackmun, dissenting from the Court's judgment that the special
admissions program under examination was unlawful, joined with
three other justices in concluding that the University of California at
Davis had reason to believe, based on the foregoing data, that minority underrepresentation was a significant and chronic problem atfelt was most 'devastating' to Perales was written by an 'anglo' doctor, disliked by Perales, who
reported that Perales was trying to exaggerate his difficulties." Project, The Supreme Court
1970 Termn, 85 HARv. L. REV. 3, 330 n.31 (1971).
98. 438 U.S. 265 (1978). In Bakke, the Supreme Court for the first time decided a "reverse
discrimination" case on the merits. The Court was severely divided, however, and left many
issues unresolved. Justice Powell was able to announce only the judgment of the Court. That
judgment, but not its underlying reasoning, was joined in by four other justices with respect to
one part of the holding, and by the remaining four with respect to another part. No consistent
view of both aspects of the case was'able to command the approval of a majority of the Court.
The immediate effect of Bakke was to uphold voluntary affirmative action in practice, but not in
principle. For a complete discussion of the facts, see Project, The Supreme Court 1977 Term,
92 HARV. L. REV. 57, 131-48 (1978).
99. 438 U.S. at 370 (Brennan, White, Marshall & Blackmun, J.J., concurring in the judgment in part and dissenting), citing C. ODEGAA D, MINORITIES IN MEDICINE: FROM RECEPTIVE PASSIVITY TO POSITIVE ACTION, 1966-1976, at 19 (1977).
100. 438 U.S. at 370, citing U.S. DEP'T OF HEALTH, EDUCATION, AND WELFARE,
MINORITIES AND WOMEN IN THE HEALTH FIELDS 7 (May, 1974), and BUREAU OF THE CENsus, U.S. DEPT OF COMMERCE, 1970 CENSUS, vol. 1, pt. 1, Table 60 (1973).
1980]
JUSTICE BLACKMUN
Furthermore, the Unitributable to past societal discrimination.'
their prior admissions
for
statistics
from
the
versity could conclude
program (which applied a single admission standard) that, absent a
underrepresentation of minorities in medicine
change in policy,
02
would persist.1
Under the challenged admissions program, the school reserved sixteen of the one hundred places in each year's class for minority
applicants.' 0 3 Bakke, a white male, established that the school had
denied him admission through the general admissions program for
two consecutive years, even though his entrance examination scores
of
and grade point average were substantially higher than those
04
program.1
admissions
special
applicants admitted through the
In his opinion announcing the judgment of the Court, Justice Pow-
ell stated that denying individuals the state provided benefit of admission to medical school on the basis of race was permissible only if
required for the accomplishment of a substantial state interest or purpose.' 0 5 He rejected as justification for the special admissions program the purposes of countering the effects of societal discrimination
and of increasing the number of physicians practicing in underserved
communities.' 0 6 He rejected the first of these purposes because the
government has a substantial interest in rectifying only the effects of
specific, identified discrimination.' 0 7 The second purpose was re-
101. 438 U.S. at 369 (Brennan, White, Marshall & Blackmun, J.J., concurring in the judgment in part and dissenting). Citing results of a questionnaire sent to 112 medical schools, the
justices noted that no substantial effort had been made in the United States to admit minority
4
students to medical schools until 1968. Id. at 369 n. 5.
102. Id. at 370. The statistics displayed a pattern of underrepresentation in the regular admissions program. Id.
103. Id. at 275 (Powell, J.). The Supreme Court of California had found that the special
program operated as a racial quota because of the reservation of places for minorities. The court
had held that the Davis admissions program violated the equal protection clause of the fourteenth amendment, which prohibited the consideration of race in dispensing governmental benefits. Regents of the University of California v. Bakke, 18 Cal. 3d 34, 132 Cal. Rptr. 680, 553
P.2d 1152 (1976).
104. 438 U.S. at 277 (Powell, J.). A table comparing Bakke's grade point average and MCAT
scores with those of applicants who were admitted is part of the record of the case. Id. at 277
n.7.
105. Id. at 305. Justice Powell alone maintained that racial distinctions "of any sort are inherently suspect and thus call for the most exacting judicial examination." Id. at 291. Justice
Blackmun and his co-dissenters applied an intermediate level of scrutiny. See Tribe, Perspectives on Bakke: Equal Protection, ProceduralFairness, or StructuralJustice? 92 HARV. L. REv.
864, 865 (1979).
106. 438 U.S. at 310 (Powell, J.).
107. Id. Although Justice Powell recognized a legitimate purpose in ameliorating the effects
of past societal discrimination, he found that the university had no sufficiently compelling jus-
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[Vol. 29:405
jected because no adequate evidence supported the University's claim
08
that the program was needed or was designed to promote this goal.'
Justice Blackmun joined with three other justices in their "inescapable" conclusion that there are few applicants to medical schools "who
[have] endured the effects of de jure segregation, the resistance to
Brown I, or the equally debilitating pervasive private discrimination
fostered by our long history of official discrimination, . . . and yet
come to the starting line with an education equal to whites." 109 In
his separate opinion, Justice Blackmun concluded that we must find a
remedy for minority underrepresentation or society will not be able
to achieve its goal of eliminating race consciousness. 1 10 He believed
that the fourteenth amendment requires affirmative action, although
it might conflict with an idealized equality, until complete equality is
achieved."' In addition, he surmised that it would be impossible
not to take account of race in a successful affirmative action prog2
ram."1
The data before the Court established a factual context from which
it was possible to conclude that blacks had been victims of societal
discrimination that left them socially disadvantaged. The data, however, did not establish that an affirmative action program that granted
preferences to racial minorities was necessarily a proper means to
correct underrepresentation in the medical profession. Indeed,
guaranteeing places to a certain number of minority applicants in
medical school did nothing to remedy the educational disadvantage
tification for inflicting harm to one group in order to benefit another, absent a finding of past
constitutional or statutory violations. Id.
108. Id. at 310-11. Even assuming that in some situations an interest in health care might be
compelling, Justice Powell found that there was no proof that the Davis program would in fact
increase substantially the quality of health care or the number of doctors available to economically deprived citizens. Id. at 311.
109. Id. at 372 (Brennan, White, Marshall & Blackmun, J.J., concurring in the judgment in
part and dissenting).
110. 438 U.S. at 403 (separate opinion of Blackmun, J.). Justice Blackmun added several
points concerning the justification for the use of judicial power to approve affirmative action
programs. He believed that the Court had a responsibility to avoid interpreting the fourteenth
amendment and the concept of equal protection in a manner that would inhibit the attainment
of true racial equality.
111. Id. at 405. Justice Blackmun believed that, while the Harvard program might be preferable to the Davis program for policy reasons, and while the Davis program might be only
"barely" constitutional, the Davis program must be upheld. Id. at 406.
112. Id. at 407. Justice Blackmun believed that it was quite reasonable for state agencies to
use benign racial classifications in affirmative action programs, because the goal of eliminating
the effects of racial discrimination could not be adequately advanced in a racially neutral manner. Id. In United Steelworkers v. Weber, 443 U.S. 193 (1979), Justice Blackmun's opinion
would permit private parties to make reasonable attempts to identify and reallocate the fruits of
past racial discrimination. 443 U.S. at 210 (Blackmun, J., concurring).
1980]
JUSTICE BLACKMUN
425
that gave rise to the underrepresentation in the first instance. The
data, while illuminating a problem, could not be used to support this
particular remedy.
C. Making a Constitutional "Judgment Call"
The danger of tying constitutional decisionmaking to current scientific knowledge becomes apparent upon consideration of Justice
Blackmun's opinion in Roe v. Wade. 113 Two earlier cases, Skinner v.
Oklahoma114 and Griswold v. Connecticut,115 had established reproductive autonomy as a basic civil right based on the right of privacy.
In Roe, the Court extended the right of privacy to abortion. 1 16 The
abortion cases represent a collision between the right to choose
whether to bear a child and another seemingly fundamental
principle-that no person may take an innocent life unless it is
117
necessary to save the life of another.
Because the Court decided that the right to choose whether to
terminate a pregnancy is a fundamental right of a pregnant woman,
only a compelling state interest could justify state regulation of abortions. 118 Justice Blackmun concluded, based entirely upon his assessment of medical evidence, that viability is the point at which the
state interest in protecting fetal life becomes compelling, because
only then is state regulation both logically and biologically justified. 119
The medical data indicated that abortion during the first trimester
was relatively safe: mortality rates for legal abortions during the first
trimester were equal to or lower than mortality rates for normal
childbirth. 12 0 Apart from requiring that the abortion be performed
113. 410 U.S. 113 (1973).
114. 316 U.S. 535 (1942).
115. 381 U.S. 479 (1965).
116. Many commentators have questioned whether the Court should have left the abortion
issue to the individual state legislatures. They have described the opinion as a foray into the
moribund doctrine of substantive due process. See, e.g., Vieira, Roe and Doe: Substantive Due
Process and the Right of Abortion, 25 HASTINGS L.J. 867 (1974); Ely, The Wages of Crying
Wolf. A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973). See also Byrn, An American
Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REv. 807 (1973).
117. This fundamental right of a woman to choose whether to terminate a pregnancy is based
upon a long line of cases establishing "zones of privacy," the roots of which are found in the
first, fourth, fifth, ninth, and fourteenth amendments, and in the "penumbras" of the Bill of
Rights. See Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965). For a more general discussion of this confrontation, see L. TRIBE, supra note 18, at 921-34.
118. Roe v. Wade, 410 U.S. 113, 163-64 (1973).
119. Id. at 163.
120. Id. at 149. See Brief of the American College of Obstetricians and Gynecologists,
American Psychiatric Association, American Medical Women's Association, New York Academy
of Medicine, and a Group of 178 Physicians as Amici Curiae at 10-11.
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by a licensed physician, there was no compelling justification for state
regulation at this stage.' 2 ' The Court found, however, that the state
does have an interest in a woman's health and safety; thus, regulations to maximize the safety of abortions are justified after the first
trimester, when the danger of an abortion increases. 12 2 Finally, once
the fetus is viable, or capable of living outside the uterus, Justice
Blackmun found the state's interest in fetal life compelling enough to
permit the state even to proscribe abortion, except when necessary to
2
preserve the mother's life or health.l 3
In medical terms, the first trimester limitation is rational if only
maternal safety is at issue, but the opinion failed to explain satisfactorily the Court's conclusion that, regardless of when life begins, the
state interest in fetal life overrides the fundamental right of the
mother to choose to terminate her pregnancy only at the point of fetal
viability. The Court's choice of the concept of viability, which depends entirely on medical capabilities at a given point in time, was
especially hazardous. In the seven years since the decision in Roe,
advances in medical technology have made it possible for a fetus to
survive outside the uterus at twenty weeks from the time of conception; 124 thus viability now occurs from four to eight weeks sooner
25
than when Roe was decided.'
In a symposium on abortion, Dr. Alan Guttmacher commented that abortion in Eastern
Europe is not only safer than childbirth, but less of a hazard than a tonsillectomy. Symposium,
Law, Morality, and Abortion, 22 RuTGERs L. REv. 415, 440 (1968).
121. Id. at 150. The only other requirements that have been held to be constitutionally
permissible at such early stages of pregnancy are recordkeeping and reporting requirements that
are directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy. See Planned Parenthood v. Danforth, 428 U.S. 552 (J976).
122. The Court gives several examples of permissible areas of state regulation designed to
maximize the safety of abortions. Such regulations include requirements concerning the qualifications of the doctor who is to perform the abortion, the licensure of that person, the facility in
which the procedure is to be performed, and the licensing of such facility. Roe v. Wade, 410
U.S. at 163.
123. Id. The Court's preference of the life of the mother over that of the fetus was grounded
in a distinction between actual and potential life. Id. at 149. Justice Blackmun, however, declined to employ this distinction to deny absolutely the state's right to regulate abortion. At
least one commentator has argued that Justice Blackmun's decisions in these cases were based
upon serious factual errors concerning history and the status of unborn children in the law.
Byrn, supra note 116, at 814, 839.
124. See Walters, The Unwanted Child: Caringfor the Fetus Born Alive After an Abortion, 6
HAsTINGS CENTER REP., No. 5, at 10, 13 (Oct. 1976).
125. Roe v. Wade, 410 U.S. at 160. Although the Court recognized expressly that advances in
medical technology, such as fetal transplants, artificial insemination, artificial wombs, might
create difficulties in formulating precisely at what point a fetus becomes viable, it failed to
discuss the legal implications such devices would have if they became widely available during
the early stages of pregnancy.
1980]
JUSTICE BLACKMUN
Although Justice Blackmun found that the viability criterion was
justified both logically and biologically, 12 6 there is, in fact, no logic in
this finding; rather, it is a conclusion that relies entirely upon empirical evidence. Perhaps this was the most facile solution, given the divergent views of religion, philosophy, and law regarding the question
12 7
of when life begins, views which Justice Blackmun acknowledged.
In Roe, as in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,' 128 empirical evidence assisted Justice Blackmun
in drawing a line that served as a substantial restraint on the state's
legislative power. Unlike the Court's opinion in Virginia Board of
Pharmacy, however, the opinion in Roe lacked an analysis of the constitutional principles that directed the choice of the pariicular line
drawn. Justice Blackmun found it unnecessary to choose a particular
theory of life, because he considered viability to be consistent with
the relative weights of the interests at stake, 1 29 but this is merely a
conclusion without supporting jurisprudential analysis. As a result,
each time medical science advances the point of viability, the state's
compelling interest in protection of fetal life will encroach further
upon the woman's rights to privacy and reproductive autonomy.
III.
ABANDONMENT OF EMPIRICAL METHOD
Even for Justice Blackmun, there have been occasions on which he
has apparently abandoned statistical evidence and scientific data in
reaching a decision. Four cases, one of them an opinion rendered
before he reached the Supreme Court, illustrate the various conditions under which this abandonment may occur.
A. Simple Proof of Compliance or Noncompliance
with Constitutional Mandates
Planned Parenthood v. Danforth13o presented several of the same
issues present in Roe v. Wade and Doe v. Bolton, but in a different factual context. The case involved an evaluation of post-Roe
state regulations and presented,, inter alia, the questions of whether a
state was required to abide by the statistically derived division of the
That Justice Blackmun had not intended to fix the specific trimesters at the time periods
discussed in Roe became clear in Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See
notes 130-35 & accompanying text infra.
126. Planned Parenthood v. Danforth, 428 U.S. at 163.
127. Id. at 156-62.
128. 425 U.S. 748 (1976).
129. 410 U.S. at 159, 165.
130. 428 U.S. 52 (1976).
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gestation period into fixed trimesters 131 and whether it could forbid
132
specifically one widely used method of abortion.
Justice Blackmun determined that the states were not required to
adhere rigidly to the trimester system outline in Roe, 13 3 thus indicating limitations to reliance on statistical inference. Although he had
apparently used medical evidence in Roe to define the gestation
period in terms of approximate intervals of time, 1 34 in Planned
Parenthood he indicated that the definition of such medical concepts
as fetal viability was "not the proper function" of either the legislature
or the judiciary. 13 5
The issue of the viability of an individual fetus
was "a matter of medical judgment, skill, and technical ability," 136 and
not one to be fixed by statistical proofs, so far as constitutional
guidelines were concerned. This was an important qualification of the
holding in Roe, because it showed that, while statistical methods
could be used to show the legislature's failure to account for constitutionally important differences in the underlying factual conditions,
such methods could not be used as a substitute for an actual, scientific determination of when one condition becomes another.
The question of a state's prohibition of an abortion method was
more complex, and Justice Blackmun's treatment of it was more
puzzling. The state had forbidden specifically the use of saline amniocentesis as an abortion technique. 13 7 The parties to the case presented the Court with two disparate sets of empirical evidence: medical evidence that another method-prostaglandin instillation-was
safer for the mother; 138 and survey evidence that saline amniocentesis
was "an accepted medical procedure," as demonstrated by its use for
131. Id. at 63.
132. Id. at 75-76.
133. Id. at 64-65.
134. Roe v. Wade, 410 U.S. 113, 160 (1973).
135. 428 U.S. at 64. The appellants had challenged the legislature's failure to specify the end
of the second trimester as the point of fetal viability-a point on which other aspects of the
regulations depended. The legislature had defined viability in indefinite terms, as the point at
which "the life of the unborn child may be continued indefinitely outside the womb by natural
or artificial life support systems." Id. at 63-64.
136. Id. at 64.
137. Id. at 75-76. In saline amniocentesis, the amniotic fluid is replaced by a saline solution,
causing the fetus to abort.
138. Id. at 76. Objective observers believe that prostaglandin is the safer of the two methods.
See, e.g., Edelman, A Comparative Study of Intra-amniotic Saline and Two Prostaglandin F.2
Dose Schedules for Mid-Trimester Abortions, 125 Am. J. OBSTET. & GYNECOL. 188 (1976);
See generally Abortion Mortality, 20 MORBIDITY & MORTALITY WEEKLY REP. 208-09 (1971).
The Chief of Obstetrics at Yale University Medical School stated that physicians should be liable
for malpractice if, aware of all relevant factors, they choose the saline over the prostaglandin
method. 428 U.S. at 96 (White, J., dissenting in part and concurring in part) (citing Planned
Parenthood v. Danforth, 392 F. Supp. 1362, 1373 (E.D. Mo. 1975)).
1980]
JUSTICE BLACKMUN
"68% to 80% . . . of all post-first-trimester abortions." 13 9 Justice
Blackmun chose to rely upon the latter data and discounted the
former on the basis of the prostaglandin method's scarce availability at
the time of the trial. 140 By choosing to base his decision on prevalent practice within the medical community, rather than on the re14 1
sults of independent research, the Justice undermined his logic.
The state argued that it was entitled to forbid a less safe procedure in
circumstances in which a safer alternative existed. By choosing instead to use the evidence of prevalent practice, Justice Blackmun allowed a survey to change his attitude toward the choices in question.
In this choice lies the potential for a seesaw effect that would have an
unjust impact on the patients involved and on the medical community
in general.
Justice Blackmun's reliance on the chosen procedure's prevalence
in practice has a further, more devastating effect on established constitutional principle. Inexplicably, he placed on the state the burden
of proving the availability of the procedure endorsed under the statute, despite the usual presumption of constitutionality afforded state
regulations involving public health, safety, and welfare. 14 2 Because
the data appeared so impressive, the burden was placed on those
challenging the scientific evidence, rather than on those challenging
the statute. Extended to its logical conclusion, this view would have
the effect of forcing a court to decide which evidence is the most
probative and convincing, and to assign the burden of proof accordingly. The inappropriateness of such a practice is self-evident: the
evidence would have to be reviewed before the burden of proof was
imposed, a practice that would raise serious problems of notice and
procedural due process.
139. 428 U.S. at 77.
140. Id. Justice Blackmun cited two other reasons for holding invalid the state prohibition: (1)
the language of the statute might be interpreted as forbidding the prostaglandin method; and (2)
the law did not forbid other, even more dangerous, abortion methods. Id. at 77-78. The primary focus of his argument, nevertheless, was on the alternative of saline versus prostaglandin
abortion.
141. Justice Blackmun noted arguments that the prostaglandin method was "perhaps safer,"
428 U.S. at 76, but relied upon the more widespread use of the saline process. Id. at 77.
Oddly, he rested upon evidence that prostaglandin instillation was not widely available without
asking why the prevalence for the saline method existed. Id. As Justice White's dissent pointed
out, Justice Blackmun seemed to be saying that a procedure was unavailable in Missouri because it had been unavailable in Kentucky two years before. Id. at 98 (White, J., dissenting in
part and concurring in part). The use of new drugs and medical procedures tends to spread
quickly after they have been proven effective, and medical standards in those states might have
changed drastically in two years.
142. See United States v. Carolene Products, 304 U.S. 144, 152-53 (1938); Metropolitan
Cas. Ins. Co. v. Brownell, 294 U.S. 580, 584-86 (1935). Under established constitutional
principles, the burden of proof should have fallen on those seeking to overturn the statute. Id.
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Justice Blackmun demonstrated his reverence for the very scientific
data he misused in this case by upholding that part of the statute
which required data collection and maintenance of records on abortion patients, finding that it did not intrude upon the right to privacy
recognized in Roe. 14 3 He regarded the registration data as a valuable
resource to be used by the state in the protection of future abortion
patients. 14 4 Thus, this part of the opinion returned to the presumption of constitutionality, leaving a gap in Justice Blackmun's logic that
lends support to those who advocate continued judicial mistrust of
science and empirical data.
In Planned Parenthood, Justice Blackmun was faced with a choice
between two different bodies of data. In Maxwell v. Bishop,14 5 a case
he heard while still sitting on the Eighth Circuit, he was confronted
with only one body of data and rejected it. Maxwell, a black defendant convicted of the rape of a white woman, had attempted to establish through statistical analysis that he was the victim of racial discrimination in the imposition of the death penalty. The evidence of
discrimination consisted of the results of a survey of rape convictions
over a twenty-year period in a sample of nineteen counties in the
State of Arkansas, where he was tried. 14 6 After analyzing the data, a
criminologist-statistician concluded that, "compared to other rape defendants, Negroes convicted of raping white women were disproportionately sentenced to death" and that "no variable of which analysis
was possible could account for the observed disproportionate frequency."1 47 Another expert testified that the counties in the sample
were representative of the state; thus, he found that the inferences
14 8
drawn from the sample were valid for Arkansas as a whole.
Judge Blackmun made several observations regarding the study and
the testimony of the experts. First, the study did not relate to the
particular county in which Maxwell was tried and convicted, because
that county was not included in the sample. 149 In fact, the statistics
for Garland County, the locale of the trial, disclosed that Maxwell was
150
the only rape defendant to receive the death penalty in a decade.
In a period of fourteen years, two whites and two blacks had been
143.
144.
145.
146.
147.
148.
149.
150.
428 U.S. at 80-81.
Id.
398 F.2d 138 (8th Cir. 1968), vacated and remanded, 398 U.S. 262 (1970).
398 F.2d at 141.
Id. at 143 (quoting report of expert witness).
Id. at 144.
Id. at 146-47.
Id. at 146-47 n.6.
1980]
JUSTICE BLACKMUN
executed for rape. 15 1 The evidence, therefore, did not establish a
pattern of current discrimination in the jurisdiction in which Maxwell
was tried. Accordingly, the study did not tend to establish that the
jury that actually tried and convicted Maxwell had discriminated
15 2
against him because of race.
Judge Blackmun acknowledged that the evidence was sufficient to
raise a suspicion that, historically, the death penalty for rape may
have been imposed in a discriminatory manner throughout large areas
of the South. 153 These general conclusions based upon the study,
however, were not enough to invalidate current procedures in a
county in which the statistics regarding rape defendants disclosed no
unconstitutional discrimination in the imposition of the death sentence. Judge Blackmun reached this conclusion despite his personal
distaste for the death penalty, upon which he elaborated in a highly
154
personal peroration.
In Castaneda v. Partida,155 Justice Blackmun found the statistical
argument pertinent to the claim of discrimination in grand jury selection, because the empirical data had been gathered in the county in
which the defendant was indicted. 156 Furthermore, the data established that the claimed underrepresentation existed at the time of the
defendant's indictment. 15 7 In Maxwell, the data showed only a
likelihood of past discrimination in the general areas of Arkansas and
the South. This opinion, like that on the trimester issue in Planned
Parenthood, shows how carefully empirical data must be assessed in
determining the propriety of their application in any particular case.
B. Establishing the Factual Context for Constitutional Rules
Four years later, after Justice Blackmun had joined the Supreme
Court, the Court decided a second death penalty case that illustrated
in two ways the limitations of statistical and empirical evidence in
developing the factual context for constitutional decisionmaking. In
Furman v. Georgia,158 the Court held, per curiam, that the imposi151. Id.
152. Id. at 148. Judge Blackmun also had a little fun at the expense of Professor Anthony G.
Amsterdam, counsel for the defendant. He trapped Mr. Amsterdam into asserting, on the basis
of the statistical evidence, that a black could not constitutionally be given the death sentence for
rape of a white woman, while a white man could. Id.
153. Id.
154. Id. at 153-54.
155. 430 U.S. 482 (1977).
156. See notes 32-49 & accompanying text supra.
157. 430 U.S. at 495-96.
158. 408 U.S. 238 (1972). In considering the cases of three petitioners, the Court in Furman
specifically limited its grant of certiorari to the issue of whether the imposition and execution of
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tion and execution of the death penalty under then-existing procedures constituted cruel and unusual punishment within the meaning
of the eighth amendment, as applied to the states by the fourteenth
amendment. 159 Unable to agree on the grounds for this holding, the
majority justices filed five separate opinions, while the dissenters registered four. Justice Blackmun, who dissented, was placed in the
position of having to respond to statistics that his majority colleagues
relied upon heavily.
In a concurring opinion, Justice Douglas concluded that the death
penalty is unusual if its imposition discriminates against a defendant by virtue of race or other constitutionally suspect characteristics 160-a conclusion based on the premise that equal protection is implicit in the ban against cruel and unusual punishment.
Thus, he found that punishment should be considered unusual if administered in an arbitrary or discriminatory fashion. 161 He offered
6 2
empirical data to define the factual context for his determination:
the death sentence was rarely imposed, and its very rarity was evidence of arbitrariness. 16 3 He noted several studies that indicated
that the penalty was imposed disproportionately on poor people,
164
blacks, and members of unpopular social and political groups.
Statutes vesting discretion in juries and judges, Justice Douglas believed, were too likely to be applied in a discriminatory manner, despite the facial neutrality of those statutes.' 6 5 Accordingly, by reading an equal protection theme into the mandate of the eighth
amendment, Justice Douglas was able to use empirical data showing
discriminatory application to prove a violation of the ban on cruel and
unusual punishment.
the death penalty in those cases constituted cruel and unusual punishment in violation of the
eighth and fourteenth amendments. In one case, the death penalty had been imposed for murder; in the other two, for rape.
159. Id. at 239-40. The language of the opinion does not make it clear that the fourteenth
amendment was not relied upon independently. In fact, however, the fourteenth amendment
served only as the vehicle for applying the eighth amendment. See id. at 389 n.12 (Burger,
C.J., dissenting).
160. Id. at 242 (Douglas, J., concurring). Justice Douglas distinguished between the validity
of a law and of its application.
161. Id. at 256-57.
162. Id. at 250 n.15. For example, if a white person and a black person were co-defendants,
the white often was sentenced to prison, while the black was given the death penality. A black
person convicted of rape was far more likely to receive the death penalty than a white person.
Id. at 251.
163. Id. at 249, citing Goldberg & Dorshowitz, Declaring the Death Penalty Unconstitutional, 83 HAsV. L. REv. 1773, 1792 (1970).
164. Id. at 249-51.
165. Id. at 256-57.
1980]
JUSTICE BLACKMUN
Justices Stewart and White, however, stressed the combined effect
of the severity of the penalty and the infrequent and apparently capricious fashion in which it was actually carried out. These factors,
taken together, made it cruel and unusual within the meaning of the
eighth amendment. 16 6 The discretion given juries to impose or not
impose the penalty, along with their apparent reluctance to apply it,
had produced a situation that violated the eighth and fourteenth
amendments.
Justice Blackmun joined in the dissenting opinion of Chief Justice
Burger and wrote a separate opinion. Much of Justice Douglas' argument was disposed of in a footnote to Chief Justice Burger's opinion,
which cited Maxwell v. Bishop for the proposition that an equal protection claim, accompanied by supporting statistics, could defeat the
imposition of the death penalty in a proper case, but pointed out that
certiorari had been granted in Furman only on an eighth amendment
claim. 167 The claims being distinct, the statistical evidence of pat168
terned discrimination was simply irrelevant.
The argument that the discretionary and resultingly infrequent imposition of the death penalty rendered it invalid was treated at greater length. Chief Justice Burger focused on the jury's role in the judicial process, pointing out that the arguments of Justices Stewart and
White (and, by necessary implication, Justice Douglas) were in essence complaints about the jury's performance of its traditional role of
ameliorating the severity of punishments. The claim seemed to be
that, when juries have chosen not to impose death, "they have given
expression to civilized values"; when they have imposed it, "they
have acted arbitrarily and without sensitivity to prevailing standards
of decency." Such a view, he declared, was "unsupported . . . and
...
inconsistent in principle with everything this Court has ever said
about the functioning of juries in capital cases."169
Justice Blackmun took a somewhat different tack. Sharing the Chief
Justice's belief that the majority was following its ideological predilec-
166. Justice White argued that, because the death penalty is applied so rarely, it loses its
deterrent effect; its imposition becomes the pointless taking of life with little contribution to any
social purpose, thus making it excessive, cruel, and unusual punishment. Id. at 312.
167. His principal argument against the statistics used by Justice Douglas was that they covered periods when racial segregation and discrimination were much more prevalent, and hence
were not sufficiently recent to prove discriminatory application of the death penalty. Id. at 389
n.12.
168. Id.
169. Id. at 387. Chief Justice Burger also criticized the positions of Justices Stewart and
White as "essentially and exclusively a procedural due process argument," and therefore, like
that of Justice Douglas, outside the scope of the grant of certiorari. Id. at 399.
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tions more than it was the law, 170 he addressed what he saw as an
essential predicate of the majority's opinions: "that the Cruel and
Unusual Punishments Clause 'may acquire [new] meaning as public
opinion becomes enlightened by a humane justice.' "171
Granting
this point without hesitation, 172 he declined to accept the implication
that the statistics concerning jury refusal to recommend the death
penalty could provide the whole factual context for constitutional decision. Rather, he pointed to the recent enactment of a number of
death penalty statutes, some passed by unanimous or near-unanimous
votes. 17 3 If a full factual context displaying "public opinion enlightened by a humane justice" was to be sought, surely the opinion
of legislatures as well as juries should be included.
Two qualifications or, perhaps more accurately, cautions concerning
the use of statistics to supply the factual context thus are displayed in
Furman: first, the necessity that the facts be relevant to the narrow
question under consideration; second, that these facts be complete.
Justice Blackmun's opinion ended with a suggestion that, if the statistical arguments of his colleagues were followed to their conclusion,
the result might be morally unacceptable. Having declared his personal abhorrence for the death penalty, 174 he noted that, if Justices
Stewart's and White's rationales were to be followed, the death sentence, when reenacted, would have to be made mandatory. If so, it
would deprive juries of their ameliorating discretion and produce regressive legislation "of an antique mold."175 In this statement lies a
suggestion that he might have followed the statistics only with great
reluctance, even had he found them conclusive. Given his views, it
had been hard enough for him to uphold the existing system of capital punishment. It would have been difficult indeed for him to heed
statistics that led him to a point that he "thought we had passed
beyond .
.
. in our criminology long ago."176
170. Id. at 405 (Burger, C.J., dissenting); id. at 408-09, 411 (Blackmun, J., dissenting).
171. Id. at 409 (Blackmun, J., dissenting) (citation omitted).
172. Id.
173. Id. at 412-13. The statutes cited by Justice Blackmun included: Omnibus Crime Control
Act of 1970, Pub. L. No. 91-644, title IV, § 15, 84 Stat. 1891 (1971) (codified in 18 U.S.C. §
351 (1976)) (congressional assassination); Act of Aug. 28, 1965, Pub. L. No. 89-141, § 1, 79 Stat.
580 (codified in 18 U.S.C. § 1751 (1976)) (presidential assassination); and Act of Sept. 5, 1961,
Pub. L. No. 87-197, § 1, 75 Stat. 466 (codified in 49 U.S.C. § 1472(i) (1976)) (aircraft piracy).
174. Furman v. Georgia, 403 U.S. at 405-07 (Blackmun, J., dissenting).
175. Id. at 413.
176. Id.
1980]
JUSTICE BLACKMUN
C. Making a Constitutional "'JudgmentCall"
The possibility that a justice might refuse to follow scientific evidence if it leads to an apparently unacceptable result is necessarily
greater in a case in which the evidence is to be used in making what
is, in any event, a judgment call. In just such a case, McKeiver v.
Pennsylvania,1 77 Justice Blackmun demonstrated that he was not immune from this possibility.
McKeiver was the latest in a series of cases in which the Supreme
Court had reexamined traditional attitudes toward the applicability of
rules of constitutional due process to juvenile proceedings. 178 At
issue was a juvenile's right to a jury trial in juvenile court. 17 9 Justice
Blackmun's majority opinion held that juries should not be imposed
on juvenile trial procedure, because they would emphasize the adversary nature of the proceeding in derogation of the elements of
"fairness, of concern, of sympathy, and of paternal attention that the
juvenile court system contemplates." 180
The judgment call concerned the meaning of due process as
applied to juvenile trials; the agreed-upon standard was "fundamental
fairness." 18 1 The bulk of Justice Blackmun's opinion was devoted,
however, not to an analysis of the role of the jury system in assuring
fairness, but to the impact of imposing juries on the juvenile system.
Admitting the failure of the juvenile process to realize the "fond and
idealistic hopes" of its proponents,' 8 2 he nevertheless resisted a
change that, as he saw it, "would lose all that has been gained" by
183
the attempts thus far to make the system work.
177. 403 U.S. 528 (1971).
178. See In re Winship, 397 U.S. 358 (1970); DeBacker v. Brainard, 396 U.S. 28 (1969); In
re Gault, 387 U.S. 1 (1967); Kent v. United States, 383 U.S. 541 (1966); Gallegos v. Colorado,
370 U.S. 49 (1962); Haley v. Ohio, 332 U.S. 596 (1948).
179. The defendants included a sixteen-year-old, charged with robbery, larceny, and receiving stolen goods (felonies under the state law), a fifteen-year-old, charged with assault and
battery on a police officer and conspiracy (misdemeanors under the state law), and a number of
juveniles, charged with misdemeanors arising from demonstrations protesting school assignments and a school consolidation plan. In all cases, requests for a jury trial had been denied.
180. McKeiver v. Pennsylvania, 403 U.S. at 550.
181. Id. at 544.
182. Indeed, the theories underlying the juvenile court system have proven ineffectual. For a
discussion comparing theory with fact, see id. at 544 n.5. Pertinent to the views expressed in
this article is the theory that the juvenile court's decisions could be made without observing
procedural safeguards, whereas "in fact it frequently does nothing more nor less than deprive a
child of liberty without due process of law .
." I..
id.
183. Id. at 547. Justice Blackmun did not dismiss the possibility that the right to a jury trial
might aid in solving the problems of the juvenile system. He preferred, however, to leave to
the states the choice of solutions. Id.
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The striking aspect of the opinion was that it was written in the
face of evidence offered by Justice Douglas, in dissent, that cited the
substantial number of juveniles confined in adult institutions and the
length of juvenile sentences, which often exceeded considerably the
terms that would guarantee an adult the right to a jury trial.' 8 4 If
this were not enough to suggest that the distinction between juvenile
and adult trials was tenuous, Justice Douglas also sought to meet Justice Blackmun's main concern with empirical evidence. He showed
that in jurisdictions in which jury trial was allowed for juveniles, a
trifling proportion of juvenile defendants requested it, even when
represented by counsel.' 8 5 Justice Blackmun, however, apparently
had erected a barrier of principle, impervious to the application of
statistical data. The "holy circle" that he drew around the juvenile
justice system, taken in isolation, would give one cause to wonder at
Justice Blackmun's perception of the role of statistics and their relation to constitutional principle.
To summarize, this section has displayed a number of instances in
which Justice Blackmun has resisted allowing the best scientific evidence to control the constitutional outcome. In two cases-Maxwell
v. Bishop and Furnan (at least in part)-his refusal to use that evidence was based upon a careful appraisal of its probative value or of
its relevance to the real point in issue. Justice Blackmun avoided letting the evidence control in circumstances in which it should not,
even though it appeared helpful to the cases' resolution. In part of a
third case-Planned Parenthood-he retreated from the statistically
constructed rule he had apparently announced in Roe and allowed
the constitutional status of each fetus to be determined on the merits.
In the remainder of Planned Parenthood and in the other cases, however, there is room to doubt whether the empirical approach should
have been rejected. These cases demonstrate that even the most
empirical-minded justice may hold beliefs and attitudes that will be
kept immune from scientific attack.
CONCLUSION
A necessary component of judicial decisionmaking is the ascertainment and evaluation of relevant facts. Proper treatment of the facts is
essential if a judge hopes to reach fair adjudicative results. This article has focused on the opinions of Associate Justice Harry Blackmun
as a means of examining the role that empirical data and statistical
184. Id. at 560 (Douglas, J., dissenting).
185. Id. at 561 n.*.
1980]
JUSTICE BLACKMUN
437
analysis may play in assisting judges with the proper treatment of
facts. It concludes that an empirical approach can be of substantial
value in resolving constitutional issues. Indeed, empirical data may
enlighten a court's decisionmaking by assisting it in making a "judgment call"-in drawing a line where no clear line otherwise exists.
The empirical approach, however, poses special dangers and difficulties of which the judge must be keenly aware; it should never be
used as a substitute for sound, principled jurisprudence.