The Supreme Court and Children

Authors

Aaron Tang

Publication Date

3-10-2024

Abstract

How do children fare at the Supreme Court? Empirical research on the question is sparse, but existing accounts suggest a disheartening answer. A 1996 study found that children lost more than half of their cases in the Court, and a pair of prominent scholars lamented twenty years later that “the losses in children’s rights cases” had “outpace[d] and overwhelm[ed] the victories.”

In this Article, I present evidence that complicates this understanding. Based on an original dataset comprising 262 Supreme Court decisions between 1953 and 2023, I find that children have prevailed in 62.6% of their cases. This win rate is equal to or greater than the rates of two other groups that enjoy outsized success at the Court: business and religious litigants. It is also robust. Relative to the null hypothesis that children are equally likely to win or lose at the Court, the probability that children are actually more likely to prevail is significant at the 1% level. Far from faring worse than the average litigant, children seem to perform better across a range of case types and specifications.

After presenting these findings, the Article discusses several implications. Children’s rate of success reveals some surprising lessons for the legal-realist understanding of Supreme Court justices as individuals influenced by identity and ideology. It provides plausible reason for greater ambition among children’s law scholars and advocates. It teaches us to take a more encompassing view of law’s interaction with children—one that treats constitutional litigation as just one part of a broader constellation of efforts necessary to instantiate equality of opportunity for poor children and children of color. And most importantly, it offers a cautionary tale about the Supreme Court’s impotence as a true engine for societal progress. Even as the Court has ruled frequently in their favor, American children continue to face economic, educational, health, and other welfare deficits that should be unacceptable in any civilized society. Real progress—if it is to happen—is unlikely to come from nine lawyers sitting on high.

Recommended Citation

Aaron Tang, The Supreme Court and Children, 118 Nw. U. L. Rev. 1331 (2024).
https://scholarlycommons.law.northwestern.edu/nulr/vol118/iss5/3