Law and social reality in Constitutional adjudication

Law and social reality in Constitutional adjudication
© Greg Nash

Judge Amy Coney BarrettAmy Coney BarrettThe Hill's Morning Report - Biden on Putin: 'a worthy adversary' McConnell sparks new Supreme Court fight McConnell signals GOP would block Biden Supreme Court pick in '24 MORE asserts that as a Supreme Court Justice she will interpret the law as it is written, nothing more or less. Accordingly, the opinions she will write as a justice will be objective. She will not be influenced in deciding cases by the political, ideological, or religious principles that influence her private conduct.

Interpreting the law as it is written — entirely divorced from a judge’s personal convictions — is easier said than done, of course. Certainly, Barrett’s critics are more than dubious about her living up to this commitment. But there is a more basic problem with Barrett’s position, even if one believes that Supreme Court justices can keep their personal values in check when they interpret statutes and constitutional text. Adjudicating cases requires justices not only to determine what the law is, but also to determine the social reality to which the law applies.

It is one thing to say that a justice will not be influenced by her personal convictions in deciding what a legal text means. It is a different matter entirely to argue that the justice will not be influenced by her background and beliefs in understanding how the world works and how people behave.


Disputes about social reality have played a critical role in our constitutional history. Most famously, in Plessy v. Ferguson, 163 U.S. 537, in 1896, the Supreme Court upheld a state law mandating the racial segregation of passengers in railroad cars against an equal protection challenge. The Court recognized that the law protected African Americans against unequal treatment — but as a matter of social reality, it doubted whether treating railroad passengers differently because of their race had unequal effects. As the Court put it, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act. But solely because the colored race chooses to put that construction upon it.”

In 1954, the Supreme Court overruled Plessy in Brown v. Board of Education, 347 U.S. 483, and held that state mandated racial segregation assigning African American and white children to separate, but equal, public schools violated the Equal Protection Clause.

To the Brown Court, the unequal effects of racial segregation was not some misguided figment of the imaginings of African Americans as the Plessy Court had argued. As a matter of social reality, it could not be more real. In language that captures the essence of the Court’s decision, Chief Justice Warren wrote, “To separate [African American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

The importance of the justices’ conclusions about social reality in deciding cases cannot be overstated.

Consider another example. As a matter of law, the Court has repeatedly recognized that it violates the Establishment Clause for government to engage in religious coercion. But as matter of social reality, what constitutes coercion? In Engel v. Vitale, 370 U.S. 421 (1962) a case striking down state directed prayer in public schools, the Court explained that “When the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”


More recently, in Town of Greece v. Galloway, 572 U.S. 565 (2014), in rejecting an Establishment Clause challenge to sectarian prayers offered by invited clergy at town board meetings, the Court had a very different understanding of the social reality of coercion. Nonbelievers had no reason to feel coerced if they refused to participate when asked to stand and join in the offered prayers, the Court insisted. Even if they left the room during the prayer, their conduct would not be noticed or have negative repercussions.

The Court’s conclusions about social reality in Town of Greece are difficult to accept. Anyone who doubts that a failure to demonstrate what the majority considers to be “proper allegiance” to God or country in public events will be noticed and cause offense ought to talk to Colin Kaepernick.

But the key point is not that the Court’s understanding of social reality in Town of Greece was extraordinarily misguided. It is that recognizing as a matter of law that the Establishment Clause prohibits religious coercion does litigants little good if the Court refuses to acknowledge that coercion exists.

As a final example, disputes about the nature of social reality may play a prominent role in the adjudication of cases about the right to have an abortion. If the Court continues to recognize the existence of the right under something close to current doctrine as a matter of law, a controlling issue will be whether government regulations unduly burden the exercise of the right. Answering that question requires conclusions about social reality.

Laws that restrict access to clinics performing abortions can be understood as either substantial and unnecessary interference with the exercise of the right or legitimate steps designed to protect the health of the mother. In a social reality in which doctors performing abortions cannot be trusted to care for their patients, and women lack the ability to make sound decisions about carrying a pregnancy to term, regulations requiring physicians to inform women repeatedly of what the state considers to be the consequences of having an abortion can be viewed as facilitating the ability of women to make knowledgeable, reflective and deliberate decisions about terminating a pregnancy. Or in an alternative social reality in which women are understood to be capable of exercising sound judgement on this issue in consultation with medical professionals without the state’s involvement, such laws can be understood as coercive measures that unreasonably delay and burden a woman’s decision because the state erroneously doubts her ability to make reproductive autonomy choices without the state’s assistance.

Whatever one believes about the ability of Supreme Court justices to immunize their interpretation of the law from their personal beliefs, determining the law is only part of the adjudication of constitutional law cases.

Many decisions turn on conclusions about social reality.

I anticipate that Justice Barrett, like many other Supreme Court Justices, will be influenced by her background, experiences, and personal beliefs about how people act and how the world works in deciding cases. For those of us who live in a different social reality, there will be nothing objective about these decisions.

Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.