‘Litigant Shopping’ For Supreme Court Cases Can Backfire

A new study finds “litigant shopping,” or choosing plaintiffs with specific demographic attributes, can be used to shape public opinion about the U.S. Supreme Court – but it can also backfire.

Litigant shopping is a well-established practice in which attorneys or political interests identify potential plaintiffs that they believe would be a good ‘face’ for a lawsuit.

“For example, in a case challenging gun restrictions – an issue closely associated with conservative white men – attorneys identified a Black grandmother as a litigant,” says Elizabeth Lane, co-author of a paper on the research and an assistant professor of political science at North Carolina State University. “And in a case challenging sex discrimination, attorneys used a male plaintiff.

“The question we wanted to address with this study was whether identifying counter-stereotypical litigants to serve as plaintiffs in lawsuits affects the way the public feels about Supreme Court decisions in those cases.”

The study consisted of two separate experiments.

For the first experiment, researchers enrolled 1,087 U.S. adults – 652 white adults and 435 Black adults. Study participants were given information about one of two cases: either a Second Amendment case challenging firearms restrictions or a case challenging affirmative action at a state university. In each case, study participants were given one of the following scenarios: that the litigant was a white man, a Black man, a white woman, a Black woman, or no information about the litigant. Study participants were told the Supreme Court ruled in favor of the litigant in each case. Study participants were then asked how they felt about the Supreme Court.

For the second experiment, researchers enrolled 999 adults who constituted a demographically representative sample of the U.S. Participants were given information about a case challenging affirmative action at a state university. For this experiment, study participants were given one of the following scenarios: that the litigant was a white man, an Asian American man, a white woman, an Asian American woman, or no information about the litigant. Again, study participants were told the Supreme Court ruled in favor of the litigant and were then asked how they felt about the Supreme Court.

“We found that litigant shopping can make a big difference, but that it’s far from guaranteed,” Lane says.

For example, in the first experiment, white study participants generally felt positive about the Supreme Court when given the 2nd Amendment case scenario, regardless of the identity of the litigant. And Black study participants were much less positive about the Supreme Court when given the 2nd Amendment case, with the sole exception of when the litigant was a white woman. When the litigant was a white woman, support from white participants dropped, while support from Black participants went up slightly – ultimately making support from the two groups statistically indistinguishable.

Also in the first experiment, Black participants were supportive of the Supreme Court when given the affirmative action case scenario – but only when the plaintiff was a Black man. That level of support was not there when the litigant was a Black woman. White participants were supportive of the court regardless of the litigant.

The results of the second experiment were striking, in that the researchers found disapproval of the Supreme Court from both white and non-white study participants if the litigant in the affirmative action case was an Asian American man.

“What these findings tell us is that simply choosing a counter-stereotypical litigant could work to garner public support – but it could also backfire,” Lane says. “A lot of factors come into play, including not only the demographics of the litigant, but the specific nature of the legal issues involved in the case. In short, lawyers working on cases associated with political causes need to carefully consider identity politics before seeking a counter-stereotypical litigant, or they might not get the results they want.”

The paper, “You Better Shop Around: Litigant Characteristics and Supreme Court Support,” is published in the Journal of Politics. The paper was co-authored by Jamil Scott of Georgetown University and Jessica Schoenherr of the University of South Carolina.