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“Litigant shopping,” or choosing plaintiffs with certain demographic attributes, can be used to shape public opinion of the U.S. Supreme Court, but it could backfire, according to a new study. “We Do Better to Examine Litigant Characteristics and Supreme Court Support,” published in the Journal of Politics.
Litigation party shopping is a well-established practice in which lawyers and political interests identify potential plaintiffs they believe would be suitable to serve as the “face” of a case.
“For example, in cases challenging gun control — an issue closely associated with conservative white men — lawyers named black grandmothers as plaintiffs,” said Elizabeth Lane, a co-author of the study and an assistant professor of political science at North Carolina State University. “And in cases challenging gender discrimination, lawyers appointed male plaintiffs.”
“The question we wanted to answer in this study was whether identifying anti-stereotype litigants who are plaintiffs in lawsuits influences public sentiment toward Supreme Court decisions in those cases.”
The study consisted of two separate experiments.
In the first experiment, the researchers enrolled 1,087 U.S. adults (652 white adults and 435 black adults). Study participants were given information about either a Second Amendment lawsuit challenging gun control or a lawsuit challenging affirmative action at a state university.
For each case, study participants were presented with a scenario in which the litigants were either a white male, a black male, a white female, a black female, or no information about the litigants. Study participants were told that the Supreme Court had ruled in favor of the litigants in each case. Study participants were then asked what they thought of the Supreme Court.
In the second experiment, researchers enrolled 999 adults, constituting a demographically representative sample of the U.S. Participants were given information about a lawsuit challenging affirmative action at a state university.
In this experiment, study participants were given either a scenario in which the litigants were a white male, an Asian American male, a white female, an Asian American female, or no information about the litigants. Study participants were again told that the Supreme Court had ruled in favor of the litigants and were then asked what they thought of the Supreme Court.
“We’ve found that while litigant party shopping can make a big difference, it’s by no means guaranteed,” Lane says.
For example, in the first experiment, white research participants had generally positive feelings toward the Supreme Court when given a Second Amendment case scenario, regardless of the identity of the litigant. Meanwhile, black research participants were less positive toward the Supreme Court when given a Second Amendment case except when the litigant was a white woman. When the litigant was a white woman, white participants’ support decreased, while black participants’ support increased slightly. Eventually, support from the two groups became statistically indistinguishable.
Also, in the first experiment, black participants supported the Supreme Court when given an affirmative action litigation scenario, but only when the plaintiff was a black man. That level of support did not emerge when the litigant was a black woman. White participants supported the Supreme Court regardless of the litigant.
The results of the second experiment were striking: when the plaintiff in an affirmative action lawsuit was an Asian American man, both white and non-white study participants showed disapproval of the Supreme Court.
“These findings show that while simply choosing someone who is the opposite of a typical litigant may garner public support, it may also have the opposite effect,” Lane said.
“Many factors come into play, including the demographics of the litigants as well as the specific nature of the legal issues involved in the litigation. This means that lawyers taking on cases related to political causes need to carefully consider identity politics before seeking out counter-stereotyped litigants; otherwise, they may not get the results they want.”
The paper was co-authored by Jamil Scott of Georgetown University and Jessica Schoenherr of the University of South Carolina.
Further information: Jamil S. Scott et al., “You Better Shop Around: Litigant Characteristics and Supreme Court Support,” The Journal of Politics (2024). DOI: 10.1086/732956
Provided by North Carolina State University
Source: “Litigant Hunting” for Supreme Court Cases Could Backfire (September 23, 2024) Retrieved September 23, 2024 from https://phys.org/news/2024-09-litigant-supreme-court-cases-backfire.html
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