Kennedy and the Triumph of the Social

While everyone should be celebrating the monumental decision of the Supreme Court to recognize same-sex marriages, there is also something in there that, along with this weeks’ ruling on the Fair Housing Act in Texas, should warm the hearts of social scientists in particular. Both of these decisions, in different ways, have advanced the view that our understanding of the real world matters for deciding legal principles. In Obergefell v. Hodges Kennedy argued that the proper interpretation of the constitution, of what it means to be “equal,” is subject to shifting societal norms:

“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

And in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. Kennedy argued that it is not necessary to establish a discriminatory intent in order to sue under the Fair Housing Act. Rather, it is enough to show that “an identified business practice has a disproportionate effect on certain groups of individuals.”

This move towards looking at real world context (Obergefell) and consequences (Texas) in deciding the law just makes sense to us as anthropologists. But while we should welcome the way that these rulings increase the sway of the social sciences in shaping the law, we should also be cautious, for it remains an open question exactly what kind of social science will be held to be relevant in deciding legal questions. The move to include real world implications of the law received its biggest push from the law and economics movement and it is likely that quantitative research by economists and sociologists will continue to hold sway over qualitative work. Certainly several members of the Supreme Court remain quite ignorant about anthropological research on subjects like marriage. At the same time, however, these two decisions by Kennedy seem to establish important precedents for the inclusion of social science research in how we think about the law, and I think that’s a good thing.

One thought on “Kennedy and the Triumph of the Social

  1. Disparate Impact isn’t new, and it’s been under attack for years.The victory is that it’s survived.

    And the question of societal norms is the basis of “living constitutionalism”. In Canada arguments from originalism are forbidden before the courts following a decision in 1929. The Living Tree Doctrine

    Jack Balkin “Why are Americans Originalist?”

    As to the relation to social science there’s what for me a deeply frustrating symposium at Crooked Timber on a new book by Danielle Allen
    Frustrating (and not only because I’m banned) because she’s trying to come to terms with the participatory nature of societal change and development. It’s like watching some one who grew up in libraries struggling to come to terms with the importance of the schoolyard. One of the posters is a lawyer and blogs with Balkin, and she comments that Allen is thinking like a lawyer. The post drew two comments.

    And I’m back to my old argument that lawyers are the model of participatory intellectualism that social scientists have a hard time matching. PoMo theorizing being a way to reinvent a participant as a holder of universal wisdom, the passive aggressive false humility of Derrida Inc.

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