The Supreme Court and Children

Aaron Tang

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.

these findings,

After presenting

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.

AUTHOR—Professor of Law, University of California, Davis, School of Law. For insightful feedback that greatly improved my thinking on this project, I am deeply indebted to Emily Buss, Nancy Dowd, Martin

Guggenheim, and Daniel Klasik. For tremendous research assistance, I thank Mehron Assadi, Michael Braud, McKenzie Deutsch, Sabrina Etcheverry, Abby Miles, and Courtney Patton. I am also grateful to Rachel O’Sullivan and the editors of the Northwestern University Law Review.

To children’s law scholars and advocates, the Supreme Court is often regarded as more an obstacle than an ally. In an important recent article, for example, Professors Anne C. Dailey and Laura A. Rosenbury argued that the Court “regularly reiterates the view of children as dependent beings with lesser rights than adults.”1 Another leading scholar, Professor Martin Guggenheim, has observed that even though children win “often enough to make it impossible to suggest that they do not possess any rights,” at the end of the day, “state officials prevail[] more often than minors.”2 John O’Toole, the former director of the National Center for Youth Law, once lamented that although there used to be optimism about the Court’s approach to children’s rights, “those days are over.”3 And the only prior empirical analysis that I am

aware of found that between 1953 and 1993, children lost more than half of their cases at the Court.4

This Article presents evidence that complicates this conventional understanding. Drawing on an original dataset comprising 262 cases that implicate children’s interests decided since the Warren Court era, I find that children have experienced a win rate of 62.6%. This success is as robust as it is surprising—it is equal to, or greater than, the win rates enjoyed by two other groups thought to enjoy favored status at the Court: business and religious litigants.5 Children’s victories are also trans-substantive, occurring not only in the sphere of constitutional rights litigation, but also in important nonconstitutional areas such as access to statutory benefits and protection from victimization by adults.6 I thus find that the Court rules in favor of children in 64.2% of cases where they claim their own constitutional rights, but also in 61.7% of cases that implicate other kinds of children’s interests. In addition to complicating the received wisdom concerning the Court’s treatment of children, these findings hold meaningful theoretical and practical implications. First, with respect to theories of Supreme Court decision-making, they offer evidence that the Justices are sensitive to the identity of the groups affected by their decisions. At some level, of course, this conclusion is unremarkable. The notion that values and identities influence the Justices is pervasive among scholars and the public.7 What’s unexpected is that children would do better, not worse, after taking this influence into account. After all, unlike other groups who enjoy great success at the Court, children are neither politically powerful nor disproportionately represented among the Justices.8 So something else seems likely to account for their elevated win rate. The Article considers three explanations, each

with some force: the win rate reflects a low baseline starting point for children’s rights; it stems from the Court’s discretionary case-selection procedures; and it owes to the Court’s concern that children will have limited ability to avoid their harms if it rules against them.9

My findings also generate potential support for bolder advances in the field of children and the law. This is especially true regarding the position some have taken on the spectrum between radical and incremental change.10 There is a sense in which the field has been battered by defeats in cases such as San Antonio Independent School District v. Rodriguez and DeShaney v. Winnebago County Department of Social Services.11 As Professor Guggenheim recounts, there was a “brief moment” of hope in the 1960s for “reorganizing American law around the Rawlsian idea that government should not treat children differently based on the behavior of their parents.”12 Alas, that hope is felt to be no longer “on the horizon.”13

Perhaps this perception is why scholars in the field have sometimes adopted a kind of defensive-crouch posture, one aimed at securing secondbest improvements rather than advancing first-best ideals.14 Perhaps it explains, for example, how even some of the field’s most pathbreaking recent scholarship may be susceptible to the critique of being “unambitious” in its call to undo just the “low-hanging fruit” of the Supreme Court’s most anti-child rulings.15 If the Court is truly intent on limiting children’s rights, then any lack of ambition could actually reflect a sensible strategic choice: incremental progress might be the best we can realistically hope for.

But what if that isn’t the Court’s project after all? What if the Court is open to efforts to advance children’s well-being, as evidenced by a marked tendency to rule in their favor across a range of cases? And what if, at the same time, the political climate might plausibly be more open to children’s

interests than is commonly assumed, too?16 Just two years ago, after all, Congress enacted the most sweeping child welfare measure in modern history, lifting more than three million children out of poverty through the American Rescue Plan’s expansion of the Child Tax Credit.17 That is real progress. Or, rather, was. The tax credit expansion lapsed at the end of 2021, doomed by the shortage of a single courageous vote in the Senate.18 Even still, the prospect of greater-than-anticipated political support for child welfare suggests that a more ambitious agenda could be worthy of pursuit.

What might such an agenda look like? The Article’s findings are generative here, too, as they suggest children’s law scholars might benefit from widening their focus beyond children’s rights, at least in the narrow constitutional sense of the term as a negative liberty. To be clear, this framing point is not new. In 1973, a law student named Hillary Rodham argued that there are “important differences” between claims that children ought to enjoy greater constitutional rights and “political demands” to improve child welfare that more accurately hold the “status of needs or interests, not rights.”19 Professor Martha Minow has likewise recounted how “[r]ights rhetorics in the past have tended too often to imply only freedom from . . . state control.”20 While some such freedoms are surely important, children “also need guidance, involvement, [and] support . . . to protect them from harms against which they cannot protect themselves.”21 What is new is empirical evidence of the Court’s inclination to rule in favor of children— and in both kinds of cases, constitutional and nonconstitutional alike.22

Legal scholarship’s greater focus on the constitutional dimension of children’s rights is certainly understandable. It matters a great deal whether children possess the right to free speech in schools,23 a due process right to

government protection against parental abuse,24 or an Eighth Amendment right against the death penalty,25 to name just a few prominent areas of dispute. To many legal scholars who are concerned with child welfare, all other things equal, the more constitutional protections children enjoy, the better off they are likely to be.

But constitutional rights are far from the whole ballgame. For one thing, not every right is an unqualified good. One of the most important children’s cases the Supreme Court has ever decided is United States v. Darby, which upheld the Fair Labor Standards Act and its prohibition against “oppressive child labor.”26 Yet in upholding this important prohibition, Darby also had the effect of rejecting a constitutional right that might have otherwise belonged to children: the child’s due process liberty interest in performing paid labor.27

More importantly, law can generate enormous consequences for children without constitutional rights talk entering the equation. Children’s law, in other words, is about much more than the various freedoms from state action to which children may be constitutionally entitled; it is also about affirmative access to the societal supports and protections they need to thrive. Consider, in this vein, the Court’s decision in Rosado v. Wyman, which held that the Social Security Amendments of 1967 foreclosed New York’s attempt to reduce the amount of aid payable to low-income families with children.28 That statutory ruling had the effect of restoring payments to care for New York City’s neediest children by roughly $300 million in presentday dollars.29 Or consider the Court’s more recent administrative law decision invalidating the Trump Administration’s attempt to rescind DACA, a program that granted forbearance from removal and triggered work authorization for roughly 700,000 undocumented immigrants who had been

brought to the United States as children.30 If we focus too narrowly on constitutional rights, we risk erasing major victories like these from the narrative of how children fare under our law and at the Supreme Court.

Just as significantly, training our focus too narrowly on children’s rights cases risks overlooking a vital avenue through which to improve child welfare, one grounded in democratic institutions rather than federal courts. We would do well, in other words, to lift up calls by scholars like Professor Nancy E. Dowd, who has argued for a conception of children’s rights that reaches beyond “constitutional litigation claims” to include comprehensive “polic[ies] in support of children’s affirmative needs within the broader constitutional role of the legislative branch.”31 And in making this shift, one important implication is to disabuse ourselves of the misguided belief that the Supreme Court can be the engine of change that America’s poor children and children of color so desperately need. Put simply, to make meaningful progress against child poverty, educational inequality, mass gun violence, and other problems plaguing youth, we must increasingly look not to the Court, but outside it.

The Article proceeds in three parts. Part I presents my findings on how children fare at the Supreme Court. It begins with a brief overview of the common understanding in which the Court is perceived to be insufficiently solicitous to children.32 It then describes the original dataset I use to obtain insight into this story (an Online Appendix containing all of the cases in the dataset is presented at the end of the Article).33 Finally, Part I presents the results. Of particular importance, I find that between 1953 and April 2023, the Court was more likely to rule in favor of children than against them by a 62.6% to 37.4% margin. Relative to the null hypothesis that their odds of victory are akin to a coin flip, the probability that children are more likely to

win is statistically significant at the 1% level in a two-sided test.34 I also find, intriguingly, that children were more likely to win at a level of statistical significance in the Warren Court, Burger Court, and Roberts Court, but not the Rehnquist Court. This suggests that the Court has not been uniformly pro-child over the past seven decades, and it lends some credence to those who viewed the Court as insufficiently attentive to children during the Rehnquist era. Part I also describes the durability of child win rates across a range of case types.

Part II turns to the implications of these findings for general theories of judicial decision-making. It shows that the advantage children experience at the Court is of a similar magnitude to the advantage enjoyed by other notable groups such as religious claimants and business litigants.35 It then evaluates potential explanations for why the Court might afford children this special solicitude.36

Part III considers some broader implications for children and the law. First, it explores the possibility that the Court’s pro-child valence might give scholars some reason for cautious optimism and even ambition. Part III then suggests that the Court’s willingness to rule for children in both constitutional rights cases and cases implicating other kinds of interests— such as access to basic societal supports and protections—should counsel a similarly broad approach within children’s law theory. That is the good news. Part III concludes, however, with a less heartening observation: for as much as the Supreme Court has shown surprising sympathy for children, it would be a profound mistake to view the Court as a heroic institution capable of delivering disadvantaged youth from their current plight. Even as the Court has ruled disproportionately in favor of children over the past seven decades, one thing has remained unchanged: distressing levels of child poverty, educational inequality, and injustice for poor children and children of color.37 At a time of growing public disaffection with the Supreme Court, children’s dismal track record offers yet another reason to be skeptical of its power to effectuate widespread change: even when the Court is at or near its best, it is not nearly enough.

In June 2021, the Supreme Court issued a landmark ruling in favor of a cheerleader who’d been suspended from her team after sharing a short,

expletive-laden video via Snapchat criticizing her coaches.38 Few people predicted the outcome, and fewer still anticipated the lopsided vote—8–1 for the cheerleader. Veteran Supreme Court litigator Greg Garre described the outcome as “surprising.”39 Even the cheerleader’s lawyer, Vic Walczak, admitted that it was “a surprise that the [eight] justices came together” to side with his client.40

Implicit in these reactions was a background assumption about the Supreme Court and its general approach to children and the law. The Court, it is often assumed, is ungenerous in its treatment of young people.41

Part I begins by describing this perceived understanding. It then turns to an empirical assessment, drawing on a hand-built dataset comprising 262 Supreme Court children’s law cases. The standard understanding, I find, is in need of some refinement. With the exception of the Rehnquist Court era, the Supreme Court has been significantly more likely to rule in favor of children’s interests across a range of case types.

A. The Common Understanding

Skepticism of the Supreme Court’s approach to children has a lengthy pedigree. Five decades ago, Hillary Rodham chastised the Court for its “reluctant mood” towards children’s rights.42 Even though the Court had held in the 1967 case of In re Gault that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,” Rodham faulted the Court just a few years later for its “unwillingness to pursue [Gault’s] broad promise” in subsequent decisions.43 Writing in 1992, Professor Homer H. Clark Jr. argued that the Supreme Court was “often oblivious to [children’s] interests.”44 In the same year, Professor Michael J. Dale mourned that the Court was guilty of “minimiz[ing] children’s constitutional rights,” producing a “profoundly negative effect upon children in the juvenile court

system, in schools, and in the nation’s mental health system.”45 And four years later, a survey of children’s cases at the Court concluded that minors prevailed less than half the time.46

Several prominent scholars have added to this critique in more recent years. “Between 1977 and 2005,” Professors Guggenheim and Randy Hertz have argued, “there was practically nothing in Supreme Court jurisprudence for children’s rights advocates to celebrate.”47 “It is clear,” Guggenheim recounted separately in an influential book, “that juveniles have fared relatively poorly over the past generation” at the Court.48 Indeed, whenever the Court “held that minors could be treated differently from adults,” Guggenheim observed, “it sided with the state [to treat minors worse]. But it never ruled that minors should be treated differently from adults by siding with the minors.”49

In 2018, Professors Dailey and Rosenbury evenhandedly recognized that “[b]eginning in the 1960s, courts . . . concluded that older children have sufficient cognitive and emotional skills to entitle them to certain negative rights similar to those enjoyed by adults.”50 Canonical cases like Tinker v. Des Moines, in other words, afforded older youth at least a modicum of constitutional protections. But Dailey and Rosenbury argued that the Court’s recognition of “children’s autonomy in certain contexts has nevertheless failed to alter law’s view of children as fundamentally dependent beings in need of adult supervision and control.”51

Why, under the conventional narrative, might the Court take such an anti-child approach? The Court’s own opinions offer some explanation. In a 1979 case rejecting a due process claim brought by minors who had been committed to state-run psychiatric institutions, the Court wrote that “parents possess what a child lacks in maturity, experience, and capacity for

judgment.” 52 The Court has often assumed, in other words, that “recognizing the constitutional rights of parents will safeguard the interests of their children.”53 But as Professor Clark has observed, this is an assumption that overlooks the dissonance or even conflict that sometimes occurs between parents’ and children’s interests.54

In sum, the Court has ruled for children on occasion; with that much even the greatest cynic must agree. But the conventional understanding is that these victories are more the exception than the norm. As Dailey and Rosenbury write, for example, “[c]hildren’s rights” remain “limited and qualified despite language in Supreme Court decisions” occasionally suggesting the contrary.55 Or as Guggenheim and Hertz suggested in 2016, “the losses in children’s rights cases” have “outpace[d] and overwhelm[ed] the victories.”56

Two caveats about

this conventional understanding warrant mentioning. First, the above critiques should be understood as advancing a pair of related, yet theoretically distinct claims. Some scholars have explicitly argued that the Court rules against children more often than it rules for them.57 But others have not. In this latter set, scholars have been more concerned with how the Supreme Court errs in its approach to children’s cases as a theoretical matter; whether children have lost a disproportionate share of their cases as a result is not their specific concern.58 Thus, for example, preeminent children’s law scholar Professor Emily Buss was more focused on theory than tallying up outcomes in her important 2004 article, Constitutional Fidelity Through Children’s Rights. “[C]hildren, at best, get adult rights,” Buss lamented in that article, and “[t]hey never get more.”59 Worse still, Buss continued, “they often get less, a crude less, best accounted for by [the Court] starting from the detail of the adult right and cutting back,” producing a “range of distortions in analysis and outcome that disserves children.”60

Although critiques like Buss’s may be consistent with the view that the Court is not disposed to ruling in children’s favor, they should not be read as advancing any empirical claim as to how often children actually win or lose their cases.61 In fact, such critiques can coexist comfortably with the prospect of children winning frequently at the Court: it could be the case both that children win more than they lose and that their losses owe to a deficient understanding of children’s rights. Still, what both criticisms share in common is a less-than-rosy view of the Court’s approach to children and the law.

The second caveat is that the just-described critiques of the Court focus on its treatment of children when they claim constitutional rights. It is theoretically possible to believe that the Court rules disproportionately against children in these constitutional cases, but for them in others. I have not found any such account in the literature, however. One gets the impression from the scholarship that although the Court’s unfavorable orientation towards children is most prominent in its adjudication of constitutional rights, it is not limited to that sphere.62

In any case, I will argue later that this focus on the Court’s constitutional docket vis-à-vis children is too narrow.63 Many of law’s most important interactions with children concern entitlement to benefits (e.g., aid to families with dependent children64) or protections (e.g., against sexual harassment in school65) that do not exist in virtue of any claim under the Constitution. And even on its own terms, the argument that children fare poorly in their constitutional cases at the Court is at bottom an empirical one. In short, pessimism about the Court’s approach to children’s law is widespread and understandable. What is missing from the broader debate, however, is empirical support for the view that the Court is skeptical of interests. By children’s constitutional rights and nonconstitutional systematically examining whether children win or lose at the Court in the

modern constitutional era, I hope to contribute an additional data point to debates over the Court’s role in child welfare.

B. Data

I am aware of no existing comprehensive dataset of Supreme Court cases implicating children’s interests. The closest I could find in the literature is a set of fifty-three decisions issued between 1953 and 1996, across which children lost more than they won according to Professor Susan Gluck Mezey.66 But in addition to lacking data from the past twenty-six years, Mezey’s selection criteria strike me as too narrow. She declines to include Brown v. Board of Education as a children’s law case, for example, because it “transcends children’s rights.”67 Moreover, given its limited focus on constitutional claims, her dataset also misses a host of important rulings like Lau v. Nichols, which held that the Civil Rights Act of 1964 requires schools to offer supplemental language instruction to English learners.68

To develop a fuller sense of how the Court rules across the range of children’s law cases, then, my first step was to build a comprehensive dataset from the ground up. The following subparts describe that process. I begin with a discussion of case-selection criteria before offering an illustrative sampling of common case types and explaining the dimensions along which I coded each case. The resulting set of cases is presented in an Online Appendix.

I want to pause, however, to acknowledge an important limit of this data. Children’s law is in no way exclusively or even predominantly a function of opinions issued by the Supreme Court of the United States. Most of children’s law happens well outside the confines of One First Street, whether in state courts, legislatures, the juvenile justice system, the child welfare system, or school disciplinary proceedings. Just as importantly, much of it happens not through the top-down work of adults defining children’s rights and entitlements, but the bottom-up work of community members and youth themselves.69 So although my analysis focuses on

Supreme Court opinions, I do not want to lose sight of how those opinions form just a small part of the broader constellation of children and the law.70 That said, what the Supreme Court says about children’s law matters, often immensely. Just ask a child whose family loses desperately needed welfare benefits when the Court upholds a regulation denying their eligibility for aid.71 Ask a student whose belongings are searched by school officials despite the absence of probable cause.72 Or ask the juvenile offender who faces the rest of his life in prison, with no possibility of parole, even though strong evidence exists that he has rehabilitated.73 Supreme Court cases are not the be-all and end-all of children’s law, but they are worthy of our attention all the same.

1. The Dataset My aim in this project is to shed light on how the Supreme Court rules in children’s law cases. To do so necessitates delineating some criteria by which cases will be deemed “children’s law” cases in the first place. At a far enough remove, the target seems to hold discernible borders. Cases involving children as parties, for example, are an obvious fit. On closer inspection, though, boundary questions emerge. Some cases don’t involve children as formal parties, but the Court reasons to an outcome by making express arguments concerning children’s well-being. Other cases explicitly mention children, but only in passing, and in ways that seem unrelated to the underlying legal questions. How should it be decided which cases qualify and which do not?

I applied the following principle to settle these borderline cases: a case belongs in my dataset if it either implicates or turns on children’s interests as a particularized class. Thus, if a Supreme Court case implicates children’s interests only because it implicates everyone’s interests (or a broad array of people’s interests), and children are just one undifferentiated subset of the broader group, then the case isn’t really a children’s law case for purposes of my analysis.

Under this rule, a case like Korematsu v. United States would not belong in my dataset even though some of the tens of thousands of Japanese-

Americans who were incarcerated in prison-like conditions happened to be children.74 Because such children were affected by the decision in a manner undifferentiated from the adults who were subjected to the same incarceration, including Korematsu (and cases like it) in the dataset would sweep in rulings that the Court itself would not have perceived as having to do with children’s law.

The foregoing case-selection principle also functioned as a rule of inclusion. Even if a case was not on its face one that necessarily implicated children’s interests, I included it in my dataset if the Court’s analysis turned on an assessment as to the case’s specific effect on children. The Court’s decision in Obergefell v. Hodges is a prominent example of this kind of a case: although the legal question involved the constitutional right of adult same-sex couples to marry, the Court relied expressly in its ruling on arguments concerning the need to protect the children of same-sex parents from societal stigma.75 In making these arguments, the Court demonstrated not only the belief that its decision would be pro-child but also the explicit position that this pro-child orientation should matter to the outcome— precisely the effect I am trying to investigate.

Another implication of my case-selection principle concerns cases in which children played only an incidental role. Quite often, the Court decides cases in which a child appears in the factual background. Cases challenging the imposition of the death penalty, for example, sometimes involve gruesome accounts of murders in which a child is a victim.76 Yet by the time many such cases reach the Court, the legal disputes concern adults alone, such as challenges to the adult’s conviction or sentence.77 Insofar as the presence of a child in the fact pattern is not material to the outcome of these cases, they are excluded from my dataset.

To identify the universe of cases that could potentially fit within my case-selection criteria, I performed a search of every Supreme Court ruling between October 5, 1953 and June 30, 2023 that used any of the following terms (or their variants): child, minor, juvenile, and student.78 I chose October 5, 1953 as the starting point because that is when Earl Warren was sworn in as Chief Justice, marking the beginning of his sixteen-year tenure.79 Admittedly, the choice to begin my dataset with the Warren Court is somewhat arbitrary, since there is no obvious reason why a Supreme Court ruling concerning children in 1952 would be less relevant to my project than one issued in 1954. That said, the Warren Court is often understood as the starting point for much of our modern conception of constitutional rights, particularly in the spheres of criminal procedure and race.80 To the extent my project aims to uncover the Court’s attitude towards children during a relevant legal era, beginning with the Warren Court seemed as reasonable as any other. Still, out of concern that my choice of time periods may have biased my results, I analyzed all children’s law cases decided during the seven-year Chief Justiceship of Fred Vinson, too.81 Just five cases that ended in a square victory or defeat for children fit within my criteria during that time period, and children prevailed in three of them—suggesting that extending the dataset somewhat further back in time would not have made a material change to the results.82

My search string returned 5,110 hits. A team of research assistants and I examined each one. We eliminated cases in which the Court denied certiorari but where one of the named parties happened to include a search term—a substantial number of the returned results.83 We disqualified cases in which references to children appeared only incidentally, such as in a nonmaterial reference in the factual background.84 We also excluded a number of other cases because even though they included a relevant search term and entailed merits dispositions, they neither implicated children’s particular interests nor turned on any special consideration of children. Still other cases were disqualified because they involved claims pertaining to young adults just over the age of eighteen. Several cases, for instance, concerned the free speech rights of college students; others concerned criminal defendants sentenced under the Federal Youth Corrections Act, which applies to eighteen to twenty-six year-olds.85 While an argument could be made to include some or all of these rulings as functionally relevant to the scope of children’s law, I chose to enforce the age of majority as a brightline rule, much like the presumptive approach across jurisdictions in the United States.86

After removing the above cases, my dataset included 342 Supreme Court decisions that squarely implicated or turned on the particularized interests of children. (For reasons described in a moment, some of these cases were not susceptible to coding as a win or loss for children, leaving a total of 262 such decisions.)87 The next subsection offers some examples of the common kinds of legal issues and stakes in these cases.

2. Common Case Types There are many joints along which the cases in my dataset might be carved. One dimension I’ve already alluded to is the important distinction between cases that entail claims to children’s constitutional rights and cases

that do not;88 I return to this point and its significance for the field of children’s law in Part III.89 In this Section, though, my aim is less to draw distinctions within the dataset than to offer a snapshot of some of the most common kinds of children’s interests that the cases encompass. Six types of cases recur with particular frequency: students’ constitutional rights cases; cases involving juvenile justice and criminal procedure; child inheritance cases; cases concerning efforts to protect children from victimization; cases involving child access to statutory benefits or protections; and cases in which children are third-party beneficiaries of constitutional rights held by adults. Table 1 provides the frequency of the case types, and I discuss seminal cases that characterize each of the categories throughout this Section.

Students’ Constitutional Rights. Many of the most well-known cases in the children’s law canon involve claims by public school students against school authorities. Consider the Court’s decades-long engagement with the scourge of segregated public education: students prevailed on their equal

protection claims in Brown and a number of follow-on rulings, but the Court ruled against them in later cases like Milliken v. Bradley.90

Another prominent set of students’ rights cases arises under the First Amendment. Tinker v. Des Moines, for instance, famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” in the course of reversing a school district’s decision to punish children who’d worn black armbands to protest the Vietnam War.91 When cheerleader Brandy Levy won her case at the Court in 2021, it was on the basis of the same free speech right.92

In other cases, school officials search students or their belongings, raising questions under the Fourth Amendment.93 Safford Unified School District v. Redding is an example.94 When an administrative assistant and nurse performed a strip search of thirteen-year-old Savana Redding in a hunt for Advil and Aleve, Redding sued, alleging a violation of her constitutional right to be free from “unreasonable searches.”95 The Court held that the search of Redding was indeed unconstitutional,96 but it has been less protective in other contexts. Thus, for example, the Court ruled against the fourteen-year-old student in New Jersey v. T.L.O. after an assistant vice principal found her smoking cigarettes in the bathroom, searched her purse, and discovered marijuana.97

Another important line of students’ rights cases involves procedural due process. Goss v. Lopez is the leading ruling here; the Court held that before a school may suspend a student for up to ten days it must provide the student with notice of the charges against them and opportunity for a hearing.98 Yet the Court was less generous in Ingraham v. Wright just two years later, holding that neither notice nor a hearing was required before school officials could inflict corporal punishment upon a student.99

Juvenile Justice & Criminal Procedure. A second prominent category of children’s law cases arises in the context of juvenile delinquency and criminal proceedings. The foundational case is In re Gault, in which the Court invalidated a summary Arizona juvenile court proceeding that resulted in the commitment of a fifteen-year-old boy to a state-run institution.100 “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone,” the Court wrote, before holding that the Due Process Clause entitles juvenile offenders to notice, counsel, the right against self-incrimination, and the right to cross-examination before they may be adjudicated delinquent.101 In some subsequent cases, though, the Court has declined to recognize additional due process protections in juvenile proceedings.102

Other cases in this category involve police investigative practices and juvenile sentencing. An example of the former is J.D.B. v. North Carolina.103 In that case, a uniformed police officer interrupted a thirteen-year-old boy’s seventh-grade class, removed him from the classroom, and took him to an enclosed conference room where he was questioned by two police officers and two school administrators—all without receiving Miranda warnings.104 The question in the case was whether police placed the boy “in custody” as would be required to trigger his Miranda rights. In answering that question in the negative, the North Carolina Supreme Court held that “consideration of the age” of the child was irrelevant to the custody determination.105 The Supreme Court reversed, holding that “a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go,” and that courts should “account for that reality” in performing a Miranda custody analysis.106

J.D.B. v. North Carolina was a notable ruling because in awarding extra constitutional protections to children in virtue of their youth, it ran counter to the biting “adult-minus” critique advanced previously by Professor Buss and others.107 Yet police questioning is not the only context in which the Court has granted children special constitutional protections. In Roper v. Simmons, for example, the Court held that the Eighth Amendment forbids imposition of a death sentence upon a defendant who was less than eighteen

years old at the time of their offense.108 The Court extended this right in Miller v. Alabama, prohibiting mandatory life without parole for juvenile offenders even though such sentences would be permissible for adult offenders.109

Child Inheritance Cases. A third basket of oft-recurring cases involves situations where children raise constitutional claims seeking the right to inherit from their parents. Trimble v. Gordon is a good example.110 In that case, Illinois law permitted all children to inherit via intestate succession from both parents with one exception: nonmarital children were allowed to inherit that way only from their mothers. The Court invalidated this differential treatment, holding that it denied nonmarital children equal protection of the laws.111 As the Court explained in an earlier ruling that struck down a similarly discriminatory Louisiana worker’s compensation law, “visiting this condemnation on the head of an infant is illogical and unjust” because “imposing disabilities on the illegitimate child is contrary to the basic concept . . . that legal burdens should bear some relationship to individual responsibility or wrongdoing.”112 But the Court has not always ruled in favor of nonmarital children; it upheld a law requiring a court order of paternity before a nonmarital child could inherit from his father in Lalli v. Lalli.113

Child Protection Cases. The next category involves efforts to protect youth from victimization. Two cases from Ohio are illustrative. Osborne v. Ohio concerned a challenge to an Ohio statute that criminalized possessing or viewing child pornography.114 In upholding the law, the Court pointed out that Ohio had enacted the law for the purpose of “protect[ing] the victims of child pornography” and “destroy[ing the] market for the exploitative use of children.”115 “It is evident beyond the need for elaboration,” the Court reasoned, that “a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’”116

The Court also relied on the importance of protecting minors in Ohio v. Clark, a 2015 Confrontation Clause case.117 The case arose when Ohio charged Dee Clark for assault and child endangerment after preschool teachers discovered gruesome injuries on his girlfriend’s three-year-old child.118 When asked how the injuries occurred, the child answered “Dee, Dee.”119 At trial, prosecutors introduced this identification as evidence of Clark’s guilt.120 But the child did not testify because Ohio law deemed them too young.121 Clark argued that his inability to cross-examine the three-yearold violated the Confrontation Clause.122 The Court disagreed, reasoning that the clause did not apply when the purpose of questioning was “to protect a vulnerable child who needed help”—not to “gather evidence for [a] prosecution.”123 Driving home the importance of the child’s age in its analysis, the Court added that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.”124

Statutory Benefits. A fifth category of important children’s law cases involves benefits to which children are entitled under various statutory regimes. One frequently recurring set of such cases involves payments to low-income families with dependent children under federal welfare programs. Thus, for example, the Court ruled in favor of children in Rosado v. Wyman when it held that certain amendments to the Social Security Act blocked New York from reducing the amount of aid payable to families with needy children by the present-day equivalent of $300 million.125

The Court has also decided cases with a substantial impact on children’s lives in the context of other statutory regimes. Some cases involve children’s rights under Title IX of the Education Amendments of 1972, such as the Court’s 1992 ruling that student victims of sexual harassment by school employees may sue school districts for monetary damages.126 Several other cases involve the Individuals with Disabilities Education Act (IDEA), which requires states that accept federal financial assistance to provide children

with qualifying disabilities a “free appropriate public education.”127 A recent example is Endrew F. v. Douglas County School District, which rejected a school district’s argument that it could comply with the IDEA merely by providing eligible children individualized education programs that offer “more than de minimis progress.”128 The Court adopted a more demanding standard, one under which districts must provide “an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”129

Third-Party Benefit Cases. A final set of cases involves ones where, in deciding constitutional claims brought by adults, the Court issues decisions that squarely and powerfully affect the interests of children. Obergefell v. Hodges, alluded to earlier, is a notable recent example, insofar as the Court relied explicitly on the salutary effects of its ruling for children of same-sex couples.130 Moore v. City of East Cleveland is another.131 By striking down a city ordinance criminally punishing a grandmother because she lived with two grandchildren from different parents, the Court both upheld the grandmother’s substantive due process rights and furthered the interests of similarly situated grandchildren who live in extended family units.

A somewhat less obvious example in this category is Palmore v. Sidoti.132 There, a Florida trial court changed its earlier determination in which it had awarded custody over a three-year-old to the child’s mother after learning that the mother was in a mixed-race relationship.133 The Supreme Court reversed this ruling, holding that the trial court’s reliance on societal racial prejudice as a reason to take custody away from the child’s mother violated her right to equal protection.134 While this was surely a victory for the mother, so too was it a win for youth: as a result of the Court’s decision, children can no longer be taken from natural parents who are “appropriate person[s] to have such custody” merely due to racial bias.135

3. Coding the Data My next step was to code each of the 342 cases in my dataset. I did so along five dimensions: whether children won or lost; whether a child was a party to the case; whether petitioner or respondent represented the children’s

interest; whether a child was a criminal defendant; and whether the children’s interest was in the nature of their own constitutional right or something else.

Win or Loss? The key variable in my analysis is whether children won or lost the case at hand. I coded cases as wins if they implicated or turned on a particularized interest of children, and the Court ultimately ruled in favor of protecting or advancing that interest.136 I coded cases in which the Court declined to protect or advance the relevant child interest as losses. For many rulings, the answer was immediately apparent. Children obviously won, for example, when the Court reversed punishments imposed by school officials in big free speech cases like Tinker v. Des Moines and Mahanoy Area School District v. B.L. And they obviously lost in a case like San Antonio v. Rodriguez, which denied the existence of a fundamental right to education. In two types of decisions, however, coding children as a winner or loser was less straightforward. The first type included cases in which children both won and lost in some material ways, making it difficult to code the case as just one outcome or the other. The Court’s 2014 decision in Paroline v. United States is a useful example. The question was whether a defendant convicted of possessing child pornography could be required to pay restitution to the child victim—and if so, how much.137 The child victim argued that each offender should be made jointly and severally liable for the full amount of her losses, whereas the defendant argued that he should not be required to pay any restitution at all.138 Writing for the majority, Justice Anthony Kennedy split the difference: trial courts, he reasoned, “should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”139 An order of some restitution, of course, is better than nothing—so the case was not a “loss” for child victims. But neither was it a clear “win” because the Court’s approach created the possibility that child victims would “face

‘decades of litigation that might never lead to full recovery.’”140 In my view, the most accurate way to describe Paroline’s outcome for children was as a “tie,” so I coded it and similar cases accordingly.

A second difficult case type included rulings that were not susceptible to coding as a win or loss for children without making a prior, reasonably contestable value judgment. Use of the qualifier “reasonably” does some work in this formulation. In theory, for example, a white supremacist could argue that a ruling like Brown v. Board of Education was a loss for (white) children. Such a position, however, is not reasonable, and I accordingly have little difficulty coding a case like Brown as a clear win for children. On the other hand, cases involving the right to abortion, religion in public schools, and direct tension between parental and children’s interests generate reasonable, divergent opinions.

Any case involving the right to abortion, for example, cannot be coded as a win or loss without an initial value judgment as to whether an unborn fetus is a “child” in the sense relevant to children’s law. This rule extends to cases implicating the right of pregnant minors to abortion.141 One cannot conclude that any of these rulings are “wins” or “losses” without a prior, subjective value judgment regarding the status of unborn fetuses or the best interests of the minor who seek the procedure. No matter my own view on that question, the important point is that reasonable people can and do disagree on it.142 I accordingly code abortion cases as requiring a “value judgment,” thus taking them out of the dataset for the purpose of calculating the rate of child victories.

To offer another example, I applied a similar approach to several cases involving religion in public schools. One cannot conclude, for instance, that the Court’s decision to forbid prayer by a clergy member at a school

graduation ceremony is a win or loss for children without an initial value judgment.143 While some children and parents may celebrate that outcome as appropriately separating church from state, others may reasonably view it as a burden on their personal faith.144 Rather than picking one side of that debate, I coded such a case as requiring a value judgment, thus leaving it out of the dataset for purposes of calculating win rates.

At the same time, I was careful not to code cases this way indiscriminately. For example, not all cases involving Establishment Clause concerns are for that reason automatically incapable of being characterized as a win or loss. Some of the Court’s rulings involve challenges to the use of public funds to provide supplemental instruction to low-income students who attend parochial schools. In Agostini v. Felton, the Court upheld such a program—and in so doing, enhanced the educational resources available to the roughly 10% of New York City’s neediest schoolchildren who happened to attend religious private schools.145 Importantly, this ruling is unlike a school prayer case insofar as it is difficult to identify a class of youth hurt by the outcome: the Court’s ruling in favor of low-income children in religious schools neither exposed any child to an unwanted display of religion in any public school nor took away resources from another student. (In fact, it was undisputed in Agostini that a ruling in favor of the needy children who attended religious schools would actually reduce the City’s Title I compliance costs by roughly $15 million per year, thus increasing the per capita amount of resources available to the city’s roughly 20,000 poor children.)146 I therefore coded cases like Agostini as wins for children.

Another important category of cases that ultimately received a “value judgment” coding includes cases where the interests of parents were in severe tension with the interests of their children. Consider, for example, Lassiter v. Department of Social Services, in which the Court held that the State of North Carolina did not violate the due process rights of a parent when it terminated her parental rights without first providing her a lawyer.147 Strong and reasonable arguments exist on both sides of this case and others

like it.148 It is a loss to the extent it may increase the odds of an erroneous termination of some child–parent relationships. Yet it is a win to the extent it enhances a state’s ability to remove a child from a harmful relationship, as was arguably the case in Lassiter, when the parent at issue was imprisoned for murder and had failed to contact social services to inquire about her child for two and a half years.149 Because I am not at all confident in my ability to describe the rule in Lassiter as a win or loss, I code it (and like cases) as a value judgment.

After applying these principles to the 342 observations in my dataset, I was left with the following totals. 262 cases resulted in a square win or loss for children, of which 164 were wins and 98 were losses. 19 cases in the dataset resulted in a tie. And 61 could not be coded without a subjective value judgment. Full tables reporting cases with codable wins and losses as well as ties and value judgments are available in the Online Appendix.150

For cases resulting in a square win or loss for children, I coded along several additional dimensions. I discuss these characteristics next and summarize their frequency within the dataset in Table 3.

Minor Party? A second, less complicated consideration involved whether a child was an actual party to the case. In a majority of the 262 cases that ended as a win or loss for children, minors were named parties. Thus, in 144 cases minors were either parties in their own capacities (e.g., as criminal defendants) or were represented in court by their legal guardians.151 In the

remaining 118 cases, the Court’s rulings implicated children’s interests despite the fact that no child was an actual party.152

Petitioner or Respondent Child Interest? I also coded whether the children’s interest in each case was represented by the petitioner (i.e., the party that lost below and thus petitions for the Court’s review) or respondent (i.e., the party that prevailed below).153 As described later, there is evidence that the Court is generally more likely to rule in favor of petitioners than respondents.154 Coding the dataset on this dimension was thus important to enable analysis of whether children’s case outcomes might be attributable to the Court’s general pro-petitioner bias. Of the 262 cases with square win–loss outcomes, children’s interests were aligned with petitioners in 144 cases and with respondents in 118.

Child Criminal Defendant? I also coded whether a case involved a child criminal defendant. Most did not; 237 of the 262 cases with square win–loss outcomes did not entail a juvenile criminal defendant, whereas 25 did.

Children’s Constitutional Right Claim? Finally, I coded for the nature of the children’s interest in each case. In some decisions, the Court reached a ruling on whether children possessed a constitutional right on their own account: cases implicating students’ free speech and due process rights are an obvious example, as are cases involving the constitutional rights of juvenile offenders.155 In other cases, however, children’s interests were of a different sort, involving either children’s entitlement to statutory benefits or rights, protection against victimization, or arguments that children would benefit from rulings involving adult rights.156 This distinction maps onto a tension in children’s law between rights claims and claims that children need greater societal support and protection.157 To enable reporting of case outcomes along this distinction, I coded this item dichotomously to capture the difference between children’s constitutional rights cases and cases implicating all other forms of children’s interests. Perhaps surprisingly, the latter set of cases outnumbered children’s constitutional rights cases by a significant margin, 167 to 95.

C. Results

The outcome of interest is whether the Supreme Court rules in favor of or against children in a given case. My null hypothesis is that the probability of the Court ruling in either direction is the same (i.e., 0.50). The alternative hypothesis is that children are not equally likely to win or lose at the Supreme Court. Because I am testing data from one sample against an assumed population parameter, the appropriate statistical test is a one-sample test of proportions:

𝑧=(𝑝−𝑝𝑜)/√(𝑝𝑜(1−𝑝𝑜)/𝑛)

where 𝑝 = children’s observed win rate; 𝑝𝑜 = 0.50; and 𝑛 = the number of cases. To account for the important possibility that the observed win rate might be either significantly greater or significantly less than 0.50, I used a two-sided hypothesis test.158

Table 4 reports the results for all 262 children’s cases in my dataset. As shown in the bottom row, children prevailed in 62.6% of these cases.159 Relative to the null hypothesis that the Court is equally likely to rule for or against children, the finding that children are actually more likely to win is statistically significant at the 1% level in a two-sided test.

This result warrants reemphasis given the dissonance it presents against the conventional account. Children’s odds of victory at the Court are not worse than 50–50, as that account suggests.160 Nor, it turns out, are their odds of victory akin to those belonging to the total universe of all litigants,

indistinguishable from a coin flip. When they get to the Supreme Court, children are instead significantly more likely to win.

Table 4 also reports my results broken down along a familiar temporal dimension: the identity of the Chief Justice at the moment of decision. I show that for three of the four most recent Chief Justiceships—during the Roberts Court, Burger Court, and Warren Court—the finding that children are more likely to win is statistically significant at the 5% level in a two-sided test (The Burger and Warren Court findings are also significant at the 1% level.). Although children were slightly more likely to win than lose during the Rehnquist Court era, prevailing in 51.4% of cases, that difference is not statistically significant.

Intriguingly, this finding offers support for the scholars who complained in the early 2000s that the Court had demonstrated a trend of ruling against children: children really did fare worse in the Rehnquist Court than in the Burger and Warren Court eras that preceded it.161 But the support is only partial: even during the least favorable Chief Justiceship since 1953, children still won slightly more cases than they lost.

The next four tables break down children’s win rates along different, nontemporal dimensions: the presence of a minor party; whether children were aligned with petitioner or respondent; whether the case involved a juvenile criminal defendant; and whether children claimed a constitutional right. In presenting these tables, my purpose is to examine the durability of the Court’s pro-child valence across a variety of case types. Each table thus

presents the results of a one-sample test of proportions against null hypotheses that are specified individually below.162

Table 5 reports how children fared at the Court in cases where minors were and were not parties. Children’s win rates were similar across both sets of cases: 63.9% in minor-party cases and 61.0% in nonparty cases. For both types, the finding that children were more likely to prevail was statistically significant relative to the null hypothesis at the 5% level.

Table 6 reports children’s win rates in cases where their interests were aligned with the petitioner as well as in cases where they were aligned with the respondent. Here, a noticeable difference emerges: Children prevailed in 76.4% of cases where their interests were aligned with petitioner, compared to just 45.8% of cases in which they were aligned with respondents. This difference is consistent, however, with a general trend among all Supreme Court rulings. Adam Feldman has found, for example, that between 1986 and 2018, the Supreme Court reversed the decision below—that is, it ruled in favor of the petitioner—in 64.4% of all cases.163

The real question, then, is whether my observed children’s win rates differed significantly from the actual population norms. To answer it, I used a one-sample test of proportions to determine whether children were more likely to prevail in cases in which they were aligned with petitioner against the null hypothesis that they would prevail in 64.4% of cases. A null hypothesis was more complicated to formulate for the win rate in cases where respondents represented children’s interests. This is because Feldman

does not separately report the rate of affirmances, or square rulings in favor of respondents; he instead includes in the remaining 35.6% all cases in which the court affirmed and reversed in part, vacated, and affirmed outright.164 For simplicity (and to be maximally conservative in reporting my results), I use the 35.6% figure as the null hypothesis for the win rate in cases where children were aligned with the respondent.

As the Table shows, children outperformed their expected win rate in petitioner cases—76.4% compared to 64.4%—at a level of statistical significance, including at the 1% level. Children also outperformed their expected win rate in cases where respondents advocated their interests, winning in 45.8% of such cases compared to the 35.6% null. That difference was statistically significant at the 5% level.

Table 7 shows children’s win rates in cases involving juvenile criminal defendants and cases involving noncriminal juvenile defendants. Criminal cases were a small portion of the overall dataset, just 25 of the total 262 cases. Children prevailed in 64% of those cases. Because of the small sample size, however, this finding missed statistical significance against the null, coin-flip hypothesis at the 5% level. Children prevailed at a similar rate (62.4%) in cases in which they were not juvenile defendants; this finding was significant at the 1% level.

Finally, Table 8 reports how the Court ruled in cases involving children’s claims to their own constitutional rights, as well as in cases implicating children in other ways. The latter category comprises a diverse set of interests, including cases where children seek a statutory benefit or privilege, cases where the government tries to protect them from victimization, and cases where recognizing an adult’s right would benefit children in turn.165 Children won more than they lost in both types of cases, at a similar rate: They prevailed in 64.2% of constitutional rights cases and 61.7% in all others. Both of these findings are statistically significant relative to the null, 50–50 hypothesis at the 1% level of statistical significance.

So much, then, for the belief that the odds are stacked against children at the Supreme Court. Across a range of specifications, children outperform the null hypotheses. I discuss some implications of these findings next.

Legal realists long ago discredited the formalistic view of judicial decision-making as a neutral, mechanical process. “Behind decisions stand judges; judges are men; as men they have human backgrounds,” Karl Llewellyn wrote, wryly, nearly a century ago.166

Llewellyn also observed that behind judges’ rulings “stand people whom [their] decisions directly or indirectly touch.”167 The identity of those people matters, especially at the Supreme Court. As Professors Neal Devins and Lawrence Baum have argued, “[t]he Justices take cues primarily from the people who are closest to them and whose approval they care most about, and those people are part of political, social, and professional elites.”168 Given this fact, it is no surprise that certain favored groups would come out consistently on top when their cases make it to the Court. All other things equal, the Justices would prefer to rule for, not against, their people.169

This Part situates the advantage children enjoy at the Supreme Court within this broader realist understanding. It begins by comparing children’s win rates to two other groups who have experienced outsized success at the Court: business litigants and religious litigants. The Part then grapples with a striking dissimilarity. Unlike business and religious litigants, children neither possess political power nor share an identity with the Court’s members. So something else seems likely to account for children’s success. The Part concludes with an assessment of three plausible hypotheses.

A. Situating Children’s Advantage

When thinking of groups that win a disproportionate share of their cases in the modern Supreme Court, two types of litigants come quickly to mind. The first is business. The New York Times captured this sentiment in a 2010 headline: “Justices Offer Receptive Ear to Business Interests.”170 The second

is religious. “An Extraordinary Winning Streak for Religion at the Supreme Court,” another Times headline read in 2021.171

Both of these perceptions are empirically supported. Professors Lee Epstein, William Landes, and then-Judge Richard Posner reported in 2017 that business litigants had prevailed in 60.5% of the 129 business cases decided by the Roberts Court.172 Professors Epstein and Eric Posner found a similar win rate of “almost 60%” for religious organizations between 1953 and 2020.173

The win rate I find for children—62.6%—is slightly greater than the rate enjoyed by either of these groups. Compared to religious litigants, this finding is robust over a similar time frame, as Professors Epstein and Posner also begin their dataset with the start of the Warren Court. But the children’s dataset is much larger, encompassing 262 children’s cases compared to the 95 religion cases analyzed by Professors Epstein and Posner.174 And compared to business litigants, children’s pattern of success is far more durable. Although business litigants have won more than they’ve lost in the Roberts Court, they were actually more likely to lose their cases in the Rehnquist, Burger, and Warren Courts.175

Why might children have experienced such success? A useful starting point is to compare children against these other litigants.176 For business groups, the first thing to observe is their overwhelming political influence.177 “For every dollar spent on lobbying by labor unions and public-interest groups together,” the political scientist Lee Drutman writes, “large

corporations and their associations now spend $34.”178 Of the 100 highestspending lobbying organizations, “95 consistently represent business.”179 The upshot is that business groups enjoy close affiliations with both political parties. Indeed, in many cases business leaders are themselves the elites within high-level political circles. Thus, for example, in every presidency dating back to President Richard Nixon, more than 70% of cabinet members were one-time corporate insiders.180 This affinity creates pressure on both parties to embrace pro-business ideologies, and it helps to explain Epstein, Landes, and then-Judge Posner’s finding that modern Supreme Court Justices appointed by Presidents from both parties actually favor business interests (albeit with a stronger effect among Republican-appointed Justices).181

Children, however, enjoy none of these political advantages. They do not bend the ears of prominent officials at pricey luncheons or contribute to their campaigns. And they certainly have no occasion to rub shoulders with the ruling class at cabinet meetings or Washington, D.C. galas.

Religious litigants offer another useful comparison. The “most natural explanation” for the Court’s solicitude for religious claims, Professors Epstein and Posner posit, is the composition of the Court: “Republican and conservative justices are more pro-religion than other justices,” and they have them outnumbered, too.182 The origin of the conservatives’ pro-religion orientation is also no secret. Five of the six conservatives today are practicing Catholics; the sixth (Justice Neil Gorsuch) was raised Catholic but now attends an Episcopalian church.183 To the extent Justices “take cues primarily from the people who are closest to them”184 and engage in identity-protective cognition,185 the conservatives’ shared religious identity matters. Put succinctly, these Justices are more likely to vote for religious litigants

because they are themselves religious—as are the members of their elite, conservative social circles.

The same cannot be said, of course, about the Justices’ identity as children. To the contrary, all nine Justices today are eligible for full membership in the American Association of Retired Persons.186

Of course, each of the Justices was once a child, and most have children of their own.187 In theory, this could create the conditions for an identitybased motivation for the Court’s pro-child tendencies. But there is reason to doubt this explanation, too. Most of the children’s cases that make their way to the Court bear little resemblance to the kind of childhood experiences the Justices encountered, to say nothing of their own children. With the notable exceptions of Justices Clarence Thomas and Sonia Sotomayor, all of the Justices come from middle- or upper-class backgrounds. And given the Justices’ significant present incomes, both from their Court salaries and from book royalties, their children are also relatively privileged.188 It is accordingly unlikely that many of the Justices see themselves or their children when they decide disputes over welfare benefits for families with needy children, due process protections afforded to delinquent minors, or the constitutionality of life without parole for juvenile offenders. Disputes over suspensions, strip searches, and speech restrictions in public high schools may also feel somewhat remote given that six of the nine Justices did not attend such schools, graduating instead from private academies.189 All of this suggests that the identity-based considerations that play such an influential part in the Court’s religion docket may be inapplicable to its children’s law docket.

One plausible alternative explanation is that the Justices may hold prochild ideologies separate and apart from their own identities, perhaps owing to a cultural affinity for children as more sympathetic than adults.190 This account is difficult to test, though, as there is no established metric along which to measure one’s pro- or anti-child disposition. It is also in some tension with the traditional wisdom among conservatives and the Republican party, which as recently as 2012 opposed the U.N. Convention on the Rights of the Child in its official party platform for fear that recognizing those rights would lead to “ominous” restrictions on parental control over children.191

For all these reasons, children’s success at the Court is unlikely to be attributable to the same forces that explain business and religious litigants’ success. Their win rates may thus have something different to teach us about the Court and how it decides cases. I consider some possibilities now.

B. Explaining the Advantage

Three factors are likely to hold some explanatory power in the Court’s propensity to rule in favor of children. The first has to do with the parsimonious baseline view of children’s rights that existed before the Warren Court era (the “baselines hypothesis”); the second concerns the Court’s discretionary case-selection procedures (the “case-selection hypothesis”); and the third involves its professed view that children generally possess few options for avoiding the harms of an adverse ruling (the “harmavoider hypothesis”).

1. The Baselines Hypothesis One reason children may enjoy disproportionate success at the Court starts with a historical artifact. “Well into the nineteenth century,” Professor Barbara Bennett Woodhouse recounts, “a father could enroll his male children in the army and collect the enrollment bounty, betroth his minor female children to persons of his choice, [and] put his children to work as day laborers on farms or factories and collect their wage packets.”192 Furthermore, even when the common law’s child-as-property view subsided, it was not replaced by a child-as-rightsholder view but rather supplemented

with the notion of state control in its role as parens patriae.193 Dailey and Rosenbury thus observe that “well into the twentieth century, children enjoyed—at best—only a minimal set of entitlements associated with basic liberties.”194 No wonder the Court has ruled so often for children since that bygone era, the baselines hypothesis posits: when it comes to children’s rights, there was nowhere to go but up.

This explanation carries undoubted force. It clearly describes major cases like In re Gault (due process rights in juvenile proceedings) and Tinker (free speech rights in schools), where children prevailed against historically contingent claims that they did not enjoy rights to begin with. But on its own, the baselines hypothesis is incomplete. It does not explain two significant facets of children’s success before the Court.

First, the baselines hypothesis holds weight in cases where the Court must decide, for the first time, whether children may lay claim to a constitutional right they were long denied. This is a nontrivial number of cases, but it’s hardly the lion’s share of the 262 observations in my dataset. For instance, 167 of those cases (63.7%) don’t involve a child’s constitutional right claim at all.195 Many of these cases instead involve statutory benefits and other protections afforded to youth.196 When the Court interprets these laws, the fact that children a century ago were thought not to possess constitutional rights seems beside the point.

Second, not all of the cases that do involve children’s constitutional rights start from the same, low baseline. Once the Court announces that children enjoy a given right, after all, all future cases are decided from that new vantage point. Moreover, the baselines hypothesis cuts no ice in explaining the many rulings in which the Court has awarded children extra constitutional rights beyond those granted to similarly situated adults. Some of these decisions provided youth offenders special protections against the harshest forms of punishment;197 others granted children adult-plus rights in

the context of criminal procedure;198 still others were in noncriminal matters where certain groups of children received special treatment under the Equal Protection Clause.199 The existence of these rulings, like children’s success in nonconstitutional cases, suggests that other forces may also be in play.

2. The Case-Selection Hypothesis A second hypothesis starts with a procedural artifact. Unlike a legislature, which can enact laws affecting children on virtually any subject matter, the Supreme Court is an appellate body that can weigh in on only those children’s cases that are first brought in a trial court and that wind their way through the judicial system. The case-selection hypothesis suggests that children’s win rate may be attributable, at least in part, to nonrandomness in the overall mix of cases that end up in the Court.200

There is some evidence to support this possibility. A majority (55.0%) of the cases in my dataset are ones in which the party that lost below (i.e., the petitioner) represented children’s interests. This is important because the Supreme Court tends to rule in favor of petitioners by a significant margin: 64.4% of cases between 1986 and 2018.201 Taken together, these facts raise the possibility that the Court’s pro-child valence might reflect the high number of cases in which petitioners (rather than respondents) advocated children’s interests.

Yet this is also an incomplete account of children’s success for two reasons. First, child-aligned petitioners outperform their ordinary petitioner counterparts, as do child-aligned respondents. As shown in Table 6 above, compared to petitioners’ usual 64.4% win rate, petitioners who represent children’s interests win in 76.4% of cases, a difference that is significant at

the 1% level. Respondents who represent children’s interests won 45.8% of their cases, a rate higher than the 35.6% observed among the general respondent population (significant at the 5% level). So even if the mix of cases at the Court were determined by some exogenous force, it would only get us part way; other factors would still be needed to explain children’s over-performance within each category of cases.

Second, and more fundamentally, case selection is emphatically not an external factor that lies outside the Court’s control. Ever since the 1925 Judiciary Act, which eliminated most direct appeals to the Court and greatly expanded its certiorari jurisdiction, the Court has exercised tremendous control over its docket.202 Even those cases that are ostensibly within the Court’s mandatory appellate jurisdiction are treated as though subject to discretionary review, with the Court frequently dismissing such appeals for lack of substantial federal questions.203 The fact that the Court reviews more cases where children lost than won below is thus no mere happenstance; it is a product of the Court’s own choices. Or put another way, the greater number of petitioner-aligned children’s cases does not explain children’s success so much as it describes it: Granting review to reverse a greater number of child defeats in lower courts is simply one mechanism through which the Court shows them special solicitude.204 What is still needed is an account for why the Court might be more likely to take up and reverse cases where children lost than ones where they prevailed.

3. The Harm-Avoider Hypothesis A third hypothesis suggests such an account. Perhaps the Court chooses to hear more cases in which children lost below—and rules overwhelmingly in their favor—because if it doesn’t, children will be especially unable to avoid the resulting harms. At the level of case selection, the idea is that children may fall within a kind of soft exception to the Court’s belief that it

is above the business of run-of-the-mill error correction.205 Unlike ordinary litigants who retain some ability to correct an erroneous lower court ruling through private ordering or the political process, children can neither vote nor effectuate unilateral, private change. In this sense, when children lose below, the Supreme Court may be more likely to intervene because they somewhat resemble another set of litigants for whom an erroneous ruling is irrevocable: death penalty defendants.206 And at the level of decision, the hypothesis suggests that, all else equal, a Court uncertain about the proper outcome of a difficult children’s case may be more inclined to rule against adults who have ways to avoid their harms than children who do not.

Evidence supporting this harm-avoider hypothesis can be found across several important children’s law cases.207 In Trimble v. Gordon, for example, the Court considered an Illinois law that allowed marital children to inherit from their fathers via intestate succession, but not nonmarital children.208 The state sought to defend the law on the ground that it would discourage childbearing out of wedlock, legitimate family relationships.209 But the Court was unpersuaded. The state has many other ways to express its preference for traditional family units, the Court pointed out. For example, punishing the unmarried adult parents for their “irresponsible liaisons” would be perfectly appropriate because such “parents have the ability to conform their conduct to societal norms.”210 Yet punishing their children was inappropriate because children lack the same ability to avoid their harms: “[I]llegitimate children,” the Court observed, “can affect neither their parents’ conduct nor their own status.”211

thereby promoting

The Court used similar logic five years later in another landmark case, Plyler v. Doe.212 The question in Plyler was whether a Texas school district violated the Equal Protection Clause when it denied free enrollment to

undocumented children.213 In ruling for the children, the Court again stressed the significance of their inability to avoid the harms they would suffer from an adverse decision—namely, the denial of a basic education and the resulting “stigma of illiteracy” and “lifetime [of] hardship.”214 For unlike their undocumented parents, who could avoid any state punishment by “remov[ing] themselves from the State’s jurisdiction,” undocumented children “are not comparably situated”—that is, they cannot unilaterally move to a new jurisdiction in order to obtain a free public education.215 The Plyler Court even quoted Trimble in observing that the undocumented child plaintiffs “can affect neither their parents’ conduct nor their own status.”216 In both cases, children’s inability to avoid the harmful consequences of defeat played an explicit role in the Court’s reasoning.

Children’s lack of post-defeat options also figured prominently in Maryland v. Craig.217 In that case, the state charged Sandra Craig for sexual abuse of a six-year-old girl.218 At trial, the child testified via one-way, closedcircuit television such that the judge, jury, defendant, and counsel could all see her, but she did not have to be physically in the same room as her abuser.219 Craig argued that this procedure violated her Sixth Amendment right to confront her accuser, but the Court disagreed.220 Craig, the Court reasoned, had ample alternative means to “ensur[e] that the [victim’s] testimony [was] both reliable and subject to rigorous adversarial testing”221: in particular, the victim was “subject to full cross-examination, and [was] observed by the judge, jury, and defendant as [she] testified.”222 A ruling in the other direction, by contrast, would have exposed the child victim (and others like her) to unavoidable harm. That is because Maryland’s closedcircuit testimony procedure required a threshold showing that forcing a child to testify in person would subject them to such “serious emotional distress . . . that the child [could not] reasonably communicate.”223 The use of closed-circuit testimony was thus “necessary to protect the welfare” of

child victims precisely because no other means existed for them to participate.224 In the absence of any alternatives, the Court again ruled in children’s favor.

The key thread across each of these cases is the Court’s concern for children’s inability to respond to an adverse decision. The nonmarital children in Trimble had no other way to inherit from their fathers; the undocumented children in Plyler had no options for obtaining a free public education; and the child victims in Craig would have been powerless to testify and obtain justice against their abusers. I’ve written elsewhere about the Court’s tendency in a range of important cases to focus in this way on losing groups’ ability to redress their defeats.225 I’ve called this approach the “least harm principle” to emphasize the Court’s interest in minimizing the harms that its rulings inflict by ensuring that losing groups possess ample options for redress.226 Children’s law cases seem to be a powerful example of this principle in action. Insofar as children often lack the power to override or circumvent their judicial defeats, the least harm principle will generally counsel the Court to rule in their favor.

To be clear, the idea behind this principle is not that children should prevail because they are the subject of societal prejudice or that they are a suspect class for purposes of the Equal Protection Clause. The Court has never endorsed that position,227 and the heyday of Professor John Hart Ely’s political process theory has long since passed.228

Nor is the idea that children should win all of their legal disputes merely because they are in some sense “helpless.”229 The idea is that their relative helplessness elicits the Court’s sympathy in a particular way. When the Court confronts a legally difficult question, it must issue a contestable answer. Such an answer will present the real risk of error and its accompanying harms for the losing side. Because children lack political and social influence—and

are unable to move jurisdictions or unilaterally escape their harms in other ways—a judicial decision to place the risk of error on them will often be less susceptible to correction than a ruling in their favor. So, a Court interested in minimizing the lasting harms inflicted by potentially mistaken decisions will find reason to rule more often for children than against them.230

* * *

Ultimately, it is impossible to say with precision just why the Court has ruled so often for children. The most plausible answer is that it is a mixture of reasons, including (but hardly limited to) the historical, case-selection, and harm-avoider hypotheses just discussed. In earlier eras, for instance, a majority of the Court’s members may have simply been ideologically predisposed in children’s favor.231

At the same time, identifying children’s elevated win rate is intriguing not just for the reasons that arguably do explain it, but also the ones that don’t. Common accounts of why business and religious litigants tend to prevail before today’s Court, for example, do not match the experience of children who possess neither elite political influence nor a shared identity with a majority of the Justices. One can thus accept the legal-realist view that the Justices are people who succumb to ordinary human biases without losing hope for the welfare of disadvantaged children. I consider next what this might mean for the field of children’s law.

Shifting our focus away from general theories of Supreme Court decision-making, this Article’s findings also suggest potential implications for children’s law and advocacy. Two of these implications are optimistic. First, children’s surprising win rate suggests that there may be reason to

adopt a more cautiously ambitious posture than some in the children’s law community have assumed. Second, children’s success in nonconstitutional cases in particular lends support for a specific kind of strategy: calls to widen our advocacy frame beyond constitutional rights.

A third implication is less optimistic, yet equally important: If there were any doubt before, this Article’s findings counsel scholars and advocates to disabuse themselves of a Supreme Court savior mentality—the notion that the Court can be a major driver of societal progress on behalf of disadvantaged youth. The Court’s decisions certainly affect children, often profoundly. But even while it has ruled largely in their favor over the past seven decades, welfare gains have been shockingly marginal for poor children and children of color.232 The upshot is that winning meaningful and lasting change will require more than favorable judicial rulings; it will require sustained political will and policy change.

A. Reason for Greater Ambition?

In 2018, three of the nation’s foremost children’s law scholars shared an illuminating exchange in the pages of the Yale Law Journal.233 Their debate was primarily concerned with the proper role of parental authority in the lives of children. But another significant theme concerned strategy as much as substance: Just how ambitious should children’s law scholars be in their calls for change?234

Professors Dailey and Rosenbury commenced the exchange with their magisterial article, The New Law of the Child.235 The crux of their argument was an attack against law’s longstanding view of children as “fundamentally dependent beings in need of adult supervision and control,” a notion they called the “authorities framework.”236 That framework, Dailey and Rosenbury complained, harmed children in several important ways, including by discounting the interests of children “in the here and now” and unduly prioritizing parental rights of control.237 Dailey and Rosenbury thus proposed to replace the authorities framework with a new, three-part framework oriented around children’s relationships with others, adults’

responsibilities to children, and the rights children should enjoy.238 Along the way, they explained how their new law of the child would overturn key Supreme Court decisions. It would, for example, recognize a child’s affirmative constitutional right to state protection in their home (overruling DeShaney),239 and uphold a child’s right to a hearing before parents may commit them to a psychiatric hospital (overruling Parham v. J.R.).240

Professor Martin Guggenheim wrote in response as a self-professed “defender” of the authorities framework.241 Whereas Dailey and Rosenbury complained that “parental rights have had an outsized influence . . . at the expense of children’s interests” in cases like DeShaney and Parham, Guggenheim argued that “the most important way to protect children’s individual interests is to maximize the authority of parents to make individualized decisions for and about them.”242

The debate over the authorities framework is nuanced and important, and I cannot do it justice here. To my mind, however, another of Guggenheim’s critiques was equally eye-opening: his charge that Dailey and Rosenbury had been insufficiently ambitious. “Great legal scholarship,” Guggenheim opined, “should do more than offer tweaks to an established regime.”243 Yet in Guggenheim’s view, that was all Dailey and Rosenbury’s proposal accomplished: it would produce “very few” changes to Supreme Court rulings, and even then only in cases that were “low-hanging fruit.”244 By contrast, Guggenheim advocated capacious reforms targeted at the “disadvantages many children currently endure because of their bad luck of having been born poor”—such as “laws guaranteeing children health care, food, clothing, shelter, free child care, and other benefits.”245

Guggenheim’s insufficient-ambition critique highlights a fascinating puzzle. There is, after all, little doubt that Dailey and Rosenbury would support every legislative proposal Guggenheim identified for improving the plight of America’s low-income children and children of color. Indeed, Professor Dailey wrote an influential article in 2011 advocating, among other things, a “far-reaching . . . affirmative constitutional claim[] to a minimum

level of family caregiving services” that would include “income support, food, housing, and clothing.”246 Nor had Dailey and Rosenbury chosen to limit the scope of their new law of the child to judicial (as opposed to legislative) prescriptions; they explicitly advocated legislative changes such as “increased regulation of the curriculum of [] homeschools.”247 Thus the puzzle: What accounts for their reticence in championing the kind of ambitious child welfare agenda Guggenheim describes?248

A partial answer, I suspect, may be strategic in nature—a kind of pragmatic reflection of the field’s longstanding cynicism about both the Supreme Court’s treatment of children, and the broader lack of political will.249 Throughout their article, Dailey and Rosenbury identify ways in which the Court has blocked efforts to improve the plight of children.250 Dislodging the settled authorities framework, they believe, would go a long way towards overcoming these Court-imposed obstacles.251 Yet given the magnitude of that challenge, it is easy to understand why Dailey and Rosenbury might have chosen not to bite off an even more ambitious legislative undertaking of the sort needed to secure a host of critical social services that would radically improve child welfare.

To his credit, Guggenheim recognized this pragmatic explanation for Dailey and Rosenbury’s reticence.252 A number of children’s rights advocates have expressed similar disenchantment with the prospect of ambitious, Court-driven reform.253 Significantly, these advocates are cynical not just about the odds of the Court expanding children’s constitutional rights, but also about its tendency to “interpret [child welfare] statutes narrowly.”254 The Supreme Court, in other words, is not only where children’s constitutional rights go to get rejected; it’s also where children’s statutory protections go to get flattened.255

But what if this belief is overblown? As we’ve seen, over the past seventy years, the Court has actually been substantially more likely to rule in favor of, than against, children’s interests.256 Importantly, that trend holds true for today’s Court: like the Warren and Burger Courts (but not the Rehnquist Court), the Roberts Court is significantly more likely to rule for children in constitutional and nonconstitutional cases alike. As described in Section I.C, children have prevailed in 75.0% of the eight Roberts Court rulings on child constitutional rights and in 65.6% of the thirty-two nonchild constitutional cases.

Correcting our understanding of the Court’s willingness to rule for children could be meaningful in a number of ways. After all, a Court that rules 8–1 in favor of a disgruntled cheerleader’s constitutional right to cuss out her coaches on social media might be surprisingly pro-child in other cases as well. An identically lopsided majority held in 2009, for instance, that school authorities violated the Constitution when they strip searched a thirteen-year-old student after receiving reports she had distributed pain relievers to her classmates.257 Might a majority today be similarly skeptical when a school official strikes a child on the buttocks with a wooden paddle for a minor infraction, thus setting the table for overruling Ingraham v. Wright?258 Or to give another example, the Court has ruled in favor of schoolchoice programs that provide private educational options to low-income

families.259 Might there be hope for a litigation theory aimed at expanding low-income students’ access to public school choice, too?260

Finally, and more ambitious still, children’s success across a range of cases implicating statutory benefits and protections suggests that perhaps our Constitution-centric approach to children’s rights has been too crabbed.261 There are ways to advance children’s interests other than litigating their constitutional rights. Some have made this point in important scholarly work already; I consider next why we should lift up these calls.

B. From Children’s Rights to Children’s Interests?

In the final week of the 2006 term, the Supreme Court issued a prominent ruling against student free speech. The case, Morse v. Frederick, involved an Alaska high school senior who’d unfurled a banner reading “BONG HiTS 4 JESUS” at a school-supervised event, whom the school later suspended.262 In a divided vote, the Court rejected the student’s argument that this punishment violated his right to free speech.263

Morse attracted great attention from commentators. Dean Erwin Chemerinsky, for example, listed it as one of the ten “most important and most high profile cases during” the first three years of the Roberts Court.264 This assessment was certainly understandable; Morse was just the fourth student free speech case ever decided by the Court and “the first in more than a decade.”265 But in truth, Morse’s high profile is more a reflection of our preoccupation with children’s constitutional rights than of its actual importance for children’s welfare. As Professor Fred Schauer astutely recognized, the Court’s actual opinion in the case was “so narrow, so casespecific, and so idiosyncratically about alleged encouragement of drug use”

that it provided guidance in precious few (if any) of the important studentspeech disputes around the country.266

Morse’s public salience presents an interesting contrast when viewed alongside another children’s law decision from the same term. Just one month earlier, the Court issued a less heralded ruling in a case called Winkelman v. Parma City School District.267 Winkelman did not involve any child’s claim to a constitutional right. Instead, the case arose when Jeff and Sandee Winkelman, the parents of a six-year-old boy with autism, took issue with the individualized education program (IEP) that a public school had offered their son.268 After an administrative hearing officer rejected their request for more speech therapy and one-on-one instruction, the Winkelmans filed a pro se lawsuit in federal court under a provision of the IDEA permitting such actions by “any party aggrieved” by an adverse administrative ruling.269 Yet the Sixth Circuit dismissed their suit on the ground that the IDEA does not allow nonlawyer parents to proceed pro se.270 The Supreme Court reversed, holding that the IDEA “grants parents independent, enforceable rights” such that they may “prosecute IDEA claims on their own behalf.”271

Given its distinctly procedural nature and the narrow, single-statute scope of the Court’s decision, it is unsurprising that national commentators did not rush to acclaim Winkelman as a profoundly important ruling. Yet from the perspective of child welfare—and especially the well-being of disadvantaged children—Winkelman was almost surely more significant than Morse. At the time of the decision, seven million school-aged children were eligible for special education services under the IDEA.272 Roughly twothirds of them (more than 4.5 million children) belonged to families that earned less than $50,000 per year.273 The Winkelmans themselves had a combined family income of less than $40,000.274 The notion that they—or the millions of families in similar situations—could afford a biweekly attorney’s fee of $2,600, as one lawyer quoted the Winkelmans for taking on

their case, is almost laughable.275 As Professor Eloise Pasachoff has powerfully argued, the burden of privately enforcing students’ rights under the IDEA is “disproportionately more difficult for people in poverty,” a fact that is “even more striking when race is factored in.”276 By ensuring that lowincome and middle-class parents of children with disabilities will have their day in court even though they cannot afford counsel, Winkelman has been essential for children from both an access-to-justice and disability rights perspective.277

One of this Article’s aspirations is to emphasize the significance (and the significant number) of cases like Winkelman. Not only are these nonconstitutional rulings more common—they outnumbered the children’s constitutional rights cases in my dataset 167 to 95—but they are essentially just as likely to end in child victories.278 Children’s constitutional cases may arouse our greatest passions, and for that reason the field of children’s law may be drawn magnetically toward them. But we should not let such cases eclipse the many other ways in which law interacts with children.

I want to be clear that in making this observation, I do not see myself as saying something novel so much as supporting and amplifying the important work of others who have championed strategies for advancing child welfare outside the courts. For as scholars like Martha Minow have long argued, “the rhetoric of rights [may be] the coin of the realm” in politics and in court, but child advocates cannot overlook the need to “roll up our sleeves and work on every front”—including in “states [and] our Congress”—to “summon attention and resources on [children’s] behalf.”279 To that end, here are some crucial scholarly accounts worthy of sustained attention. We should embrace Professor Nancy E. Dowd’s visionary call for “children’s equality rights,” which she describes as an “affirmative right . . . to that support necessary to achieve their full potential and claim their rights of full citizenship.”280 Although Dowd locates some

support for her vision in constitutional law,281 she evenhandedly recognizes in particular the presence of substantial constitutional roadblocks, DeShaney’s rejection of affirmative (as opposed to negative) constitutional rights.282 She thus wisely observes that the best chance we have to bring about radical improvements in child care, health care, educational opportunity, and other support structures for disadvantaged youth is through “affirmative legislative action.”283 In other words, her vision of “[c]hildren’s rights might generate constitutional litigation claims,” but that is not the point.284 The “more productive[]” strategy to instantiate children’s equality is “to implement policy . . . within the broader constitutional role of the legislative branch.”285

Professor Dorothy Roberts has also identified the necessity of sweeping pro-child legislation. Taking particular aim at the troubling problem of racial bias in the child welfare system, Roberts is skeptical of children’s rights as an engine for change.286 In her view, the better solution would involve an ambitious child welfare agenda that actually “provide[s] for the well-being of children.”287 The “ingredients” for such an agenda, she continues, are “clear and simple”: “first, reduce family poverty by increasing the minimum wage, instituting a guaranteed income, and enacting aggressive job creation policies; second, establish a system of national health insurance that covers everyone; third, provide high-quality subsidized child care, preschool education, and paid parental leaves for all families;” and fourth, “[i]ncreas[e] the supply of affordable housing.”288

Similar themes can be found in the work of other leading academics. Professors Clare Huntington and Elizabeth Scott, for example, have advocated a child well-being framework and accompanying blueprint for reform that would encourage states to “invest in family support generally and especially during early childhood,” and enact “evidence-based policies that

protect children from maltreatment.”289 Professor Dailey has argued that “the federal and state legislatures carry the primary responsibility for ensuring that children’s affirmative caregiving rights are fulfilled.”290 “[A] call for more children’s rights,” Professor Guggenheim has likewise suggested, should “include proposed legislation that would help ensure a fairer and just society for children” by redressing “the countless ways law disadvantages poor children.”291 And in advocating the U.N. Convention on the Rights of the Child, Professor Barbara Bennett Woodhouse has acknowledged that recognizing children’s rights as basic human rights would not “instantly transform[]” child welfare.292 What it would do, she posits, is “shift” the terrain of debate to “make a place for children as priorities and as participants,” including in the fashioning of statutory law.293

The natural counterargument is to wonder whether such legislative overhauls are truly realistic in light of existing political conditions. From a global perspective, the United States is exceptional when it comes to its investment in poor children—just not in a good way. Of thirty-eight OECD nations, we rank third from last in the share of our economy spent on children.294 Worse yet, a growing proportion of that spending is now targeted at children above, rather than below, the poverty line due to basic changes in the structure of federal safety net policies.295 And Congress continues to exhibit remarkable levels of dysfunction.296 Against this depressing backdrop, is an ambitious child welfare agenda doomed to fail?297

Perhaps not. Two of the most important legislative developments in recent years have directly enhanced child welfare in ways that would have previously seemed unimaginable. First, in the wake of the deadly shooting at Robb Elementary School in Uvalde, Texas, Congress enacted a bipartisan

gun safety bill that increases funding for school safety and mental health services, requires enhanced background checks for buyers under age twentyone, and provides funding for state red flag laws.298 Second, Congress’s expansion of the Child Tax Credit in 2021 had the incredible effect of slashing child poverty by 30%, single-handedly lifting 3.7 million children out of poverty.299 Low-income families who received the monthly tax credit payments were able to purchase food, gas, and medicine, and to cover utility bills, school expenses, and rent.300

To be sure, these victories were not everything children’s advocates could have hoped for. Notably absent from the gun safety bill was any limitation on the purchase of deadly assault rifles like the kind used in the Robb Elementary shooting. And for as dramatically as the child tax credit improved conditions for poor children, its expiration on December 15, 2021 was just as detrimental, plunging 3.4 million children back into poverty.301

Nonetheless, both developments suggest there may be greater political will to protect and support children than has long been assumed. With respect to gun safety, school shootings have been frighteningly common in America,302 yet the recent Senate deal marks the end of a thirty-year congressional logjam on meaningful gun safety measures.303 And efforts to renew some version of the expanded child tax credit remain in play, including a recent proposal advanced by a trio of Republican Senators that would restore the credit in a modified form.304 Under one centrist think tank’s

analysis, this proposal would still reduce child poverty by 12.6%, raising more than a million children above the poverty line.305

Moreover, evidence concerning the Roberts Court’s favorable handling of children’s cases offers another circumstantial data point in support of the political climate to do right by children. To be sure, the Court does not play a direct role in drafting or voting on legislation affecting children. But to the extent the conservative-leaning Court is viewed as a rough proxy for mainstream conservative ideology,306 the Roberts Court’s pro-child valence suggests that child welfare might be the rare issue on which bipartisan agreement is attainable. What is more, in the event any child welfare legislation were to come before the Court for interpretation, the data suggest the Court is more likely to construe it in favor of, than against, children.

In the end, the window of opportunity to improve child welfare—if it truly exists in the first place—may well turn out to be less open than I’ve portrayed. We won’t know, however, if we don’t try. And this much is for certain: our efforts to dismantle the considerable barriers facing millions of disadvantaged children will never succeed if we dream too small.

C. Our Impotent Supreme Court?

Finally, this Article’s findings suggest a seeming paradox. Even as the Supreme Court has ruled disproportionately for children over multiple decades, child welfare has remained stubbornly woeful on a number of important metrics. In 1971, for example, 15.3% of children in America lived in poverty.307 That number has fluctuated over time, but fifty years later, in 2021, the percentage of children in poverty remained identical: 15.3%.308 A similarly depressing picture emerges from the lens of educational opportunity. Although the Black–white achievement gap narrowed during the peak years of court-ordered integration, it has since leveled off, with

virtually no progress made since the 1980s.309 The socioeconomic achievement gap has been even more persistent: just as was true in 1954, “the achievement gap between students in the top and bottom deciles of the socioeconomic distribution” remains greater than a full standard deviation— the “equivalent of three to four years of learning.”310 And from the perspective of health outcomes, long-term trends in U.S. child mortality reveal the same distressing lack of progress.311

The paradox is this: How can children have won so many of their cases in the Supreme Court, and yet still be struggling so much across these crucial economic, educational, and health measures?

One possible answer is that the Court has ruled against children in the truly important cases—and for them in the less important ones, such that the overall win rate disguises what is, in the aggregate, a strong negative impact for children. On this view, the Court’s inability to advance child welfare could be viewed as the product of its own refusal to recognize affirmative constitutional rights in cases like San Antonio v. Rodriguez and DeShaney, which rejected a fundamental right to education and an affirmative right to state protection from parental abuse, respectively.312 There is certainly something to this account. But it misses the fact that the Court has delivered major victories to children in cases like Brown, In re Gault, and a number of important statutory interpretation disputes.313 Can it really be said that the losses outweigh the victories?

A second explanation may have to do with the many factors affecting child welfare that lie outside the Court’s control. Put simply, the well-being of disadvantaged children in America is the product of a panoply of inputs

over which the Supreme Court could only ever exercise glancing influence— everything from the size of our social safety net, to individual parenting philosophies, to the political will to invest in public education and healthcare.314 If seventy years’ worth of Supreme Court victories hasn’t measurably improved the plight of poor kids and kids of color, perhaps the proper takeaway is that the Court just possesses strikingly little ability to drive widespread, positive social change.

This observation may seem painfully obvious to some in the current moment, as progressives in particular contemplate a future dominated by a Court that seems hostile to the causes they care about most.315 But this Article’s findings suggest a subtly different takeaway. It’s not just that the disadvantaged communities that progressives care about are likely to suffer in the coming years because a conservative-dominated Court is disposed to rule against them. It’s that even if things were different and the Court were likely to rule in their favor, surprisingly little progress might still be made.

In that sense, children’s track record of success at the Court—and their accompanying lack of progress along important dimensions of well-being— can be viewed as a case study in support of Professor Gerald Rosenberg’s provocative work challenging the assumption that “the Supreme Court play[s] a fundamental role” in “producing major political and social change.”316 More than three decades ago, Rosenberg argued in The Hollow Hope that “the conditions enabling [the Court] to produce significant social reform will seldom be present” because the Court is constrained by “[t]he limited nature of constitutional rights,” the “lack of judicial independence,” and the “judiciary’s lack of powers of implementation.”317 Rosenberg defended his thesis at length in the context of school integration and abortion rights.318 But skeptics quickly pounced, calling his use of evidence “erratic,” “obtuse,” “questionable,” and “selective.”319 This Article lends additional support to his argument: little progress has been made on child poverty, educational equity, and health, even as children experienced an outsized win rate at the Supreme Court over the course of several decades.

None of this is to suggest that the Supreme Court is, or has been, entirely irrelevant for children’s well-being. Juvenile justice, for example, is one area where Supreme Court victories may have helped move the needle, though much work still needs to be done.320 And had their win–loss rate been inverted, perhaps other important dimensions of child welfare would’ve been measurably worse. It is to suggest, though, that it may be time to put another nail in the coffin of the naive mentality that the Court will one day deliver the change progressives so ardently seek.321 True, it may have done so in isolated moments in our nation’s history: that is why the view of the Court as a potential savior is so seductive.322 But my findings suggest that over the long run, real and substantial societal progress is unlikely to be driven by nine Justices. The most impactful work is in the trenches of mobilizing and ordinary policymaking, where advocates for child welfare, educational equity, and juvenile justice fight for the resources and policy reforms our children so desperately need.

There has never been an easy time to grow up poor or as a child of color in America. But for a generation of disadvantaged youth coming of age in an era of widening income inequality, public health failures, mass gun violence, racial injustice, rampant educational inequality, and a growing mental health crisis, these days may be among the hardest yet.

As a field, children’s law is dedicated to overcoming these formidable challenges. Constitutional rights can play a part in the struggle. But if we wish to meaningfully improve the social safety net for children, so too must good old-fashioned lawmaking. For decades, the conventional assumption has been that the Supreme Court stands in the way of progress on both of these fronts through its uncharitable approach to children’s cases. This

Article has suggested otherwise. Yet, at the same time, the Article has also argued that a surprisingly friendly Supreme Court alone has not been nearly enough to bring about material advances in children’s well-being. If meaningful progress is to be made, it will ultimately be on us—as voters, advocates, and scholars—to bring it about.

The Online Appendix is hosted on Digital Commons and can be accessed at https://scholarlycommons.law.northwestern.edu/nulr/vol118/ iss5/3/.

--- FOOTNOTES ---

Copyright 2024 by Aaron Tang

Printed in U.S.A. Vol. 118, No. 5

II.

INTRODUCTION ........................................................................................................... 1332 I. HOW DO CHILDREN FARE AT THE SUPREME COURT? ......................................... 1338 A. The Common Understanding .................................................................... 1339 B. Data ........................................................................................................... 1343 C. Results ....................................................................................................... 1360 IMPLICATIONS FOR JUDICIAL DECISION-MAKING THEORY .................................. 1365 A. Situating Children’s Advantage ................................................................ 1365 B. Explaining the Advantage ......................................................................... 1369 III. IMPLICATIONS FOR CHILDREN AND THE LAW ...................................................... 1376 A. Reason for Greater Ambition? .................................................................. 1377 B. From Children’s Rights to Children’s Interests?...................................... 1381 C. Our Impotent Supreme Court? .................................................................. 1387 CONCLUSION .............................................................................................................. 1390 ONLINE APPENDIX ...................................................................................................... 1391

INTRODUCTION

1 Anne C. Dailey & Laura A. Rosenbury, The New Law of the Child, 127 YALE L.J. 1448, 1464

(2018).

2 Martin Guggenheim, Graham v. Florida and a Juvenile’s Right to Age-Appropriate Sentencing,

47 HARV. C.R.-C.L. L. REV. 457, 486 (2012).

3 See SUSAN GLUCK MEZEY, CHILDREN IN COURT: PUBLIC POLICYMAKING AND FEDERAL COURT

DECISIONS 7 (1996).

4 Id. at 18 (finding that children won 49% of the fifty-three cases in her dataset); see also infra Section

I.B (discussing limitations in Professor Susan Gluck Mezey’s dataset).

5 Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, 2021 SUP. CT. REV. 315, 323–25 (finding that, between 1953 and 2020, “[r]eligious organizations won almost 60% of the cases” they were involved in); Lee Epstein, William M. Landes & Richard A. Posner, When It Comes to Business, the Right and Left Sides of the Court Agree, 54 WASH. U. J.L. & POL’Y 33, 38–39 tbl.1 (2017) (finding a 60.5% win rate for business litigants during the first decade of the Roberts Court).

6 See infra Section I.B.2. 7 See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 1 (1993); 62% of Americans Say Politics, Not Law, Drives Supreme Court Decisions, GRINNELL COLL. (Oct. 20, 2021), https://www.grinnell.edu/news/62-americans-say-politics-not-law-drivessupreme-court-decisions [https://perma.cc/LS7G-ZYHG] (finding that 62% of Americans believe the Supreme Court’s decisions are based more on the “political views of its members” than the “Constitution and the law,” whereas just 30% believed the opposite).

8 See supra note 5 and accompanying text (describing win rates for business and religious litigants); see also infra Section II.A (discussing dissimilarities between children and other litigants who win a disproportionate share of their cases at the Court).

9 See infra Section II.B. 10 For a description of this debate and the spectrum between calls for radical and incremental change, see generally Aaron Tang, The Radical-Incremental Change Debate, Racial Justice, and the Political Economy of Teachers’ Choice, 169 U. PA. L. REV. ONLINE 186 (2021).

11 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37–39, 54–55 (1973) (holding that education is not a fundamental right, such that Texas’s deeply unequal district-based property tax regime for funding its public schools did not violate the Equal Protection Clause); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196–97, 201 (1989) (rejecting a substantive due process right to state protection from parental abuse).

12 Martin Guggenheim, The (Not So) New Law of the Child, 127 YALE L.J.F. 942, 957 (2018). 13 Id. at 958. 14 Cf. Mark Tushnet, Abandoning Defensive Crouch Liberal Constitutionalism, BALKINIZATION https://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html

6,

(May [https://perma.cc/6M62-J5V6].

2016),

15 Guggenheim, supra note 12, at 945, 948 (reviewing Dailey & Rosenbury, supra note 1).

16 See, e.g., Rajan Menon, U.S. Politics Is Failing Children, BOS. REV. (Sept. 21, 2020), https://www.bostonreview.net/articles/rajan-menon-tk/ [https://perma.cc/3YEW-XWE9] (describing the commonly held view that the American political climate is inhospitable to the interests of children).

17 Zachary Parolin, Sophie Collyer & Megan A. Curran, Sixth Child Tax Credit Payment Kept 3.7 Million Children Out of Poverty in December, 6 POVERTY & SOC. POL’Y BRIEF, Jan. 18, 2022, at 1, 3.

18 See Amelia Thomson-DeVeaux, Congress Found an Easy Way to Fix Child Poverty. Then It Walked Away, FIVETHIRTYEIGHT (Mar. 30, 2022), https://fivethirtyeight.com/features/congressfound-an-easy-way-to-fix-child-poverty-then-it-walked-away/ [https://perma.cc/9VRZ-RDSV] (“But the evidence didn’t seem compelling to the one person who controlled the expanded CTC’s fate: Democratic Sen. Joe Manchin.”).

19 Hillary Rodham, Children Under the Law, 43 HARV. EDUC. REV. 487, 488 (1973). 20 Martha Minow, What Ever Happened to Children’s Rights?, 80 MINN. L. REV. 267, 297 (1995). 21 Id. 22 See infra Section I.C; Table 5. 23 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969).

24 DeShaney, 489 U.S. at 193. 25 Roper v. Simmons, 543 U.S. 551, 555–56 (2005). 26 312 U.S. 100, 125 (1941); 29 U.S.C. § 212(a). 27 See Guggenheim, supra note 12, at 942–43 (noting that Darby effectively restricted any right children might claim to being “gainfully employed”); see also DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE 257 (2002) (criticizing “[t]he concept of children’s rights” for being “easily co-opted by powerful people to achieve their social objectives and maintain their social position”). 28 397 U.S. 397, 401 (1970). Notably, the Court expressed ambivalence about the strength of its statutory argument, yet ruled in favor of dependent New York City children nonetheless. See id. at 415 (“[T]he application of the [Social Security Amendments of 1967] to the New York program is by no means simple . . . .”).

29 Id. at 416–17 (discussing the $40 million impact of the case in 1970 dollars). Another way of describing the ruling’s effect is that it struck down a law that, according to the district court in Rosado, would have produced an average annual loss to needy families of $343.81 per year, or about $2,500 in 2022 dollars. Rosado v. Wyman, 304 F. Supp. 1356, 1369 (E.D.N.Y. 1969).

30 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1912–15 (2020). Indeed, a majority of the Justices in Regents of the University of California actually rejected the argument that the Administration’s DACA rescission violated the equal protection rights of DACA beneficiaries. Id. at 1915–16 (plurality opinion) (rejecting the equal protection claim with votes of Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan); id. at 1936 (Kavanaugh, J., concurring in the judgment in part and dissenting in part) (rejecting the equal protection claim, too).

31 Nancy E. Dowd, Children’s Equality Rights: Every Child’s Right to Develop to Their Full Capacity, 41 CARDOZO L. REV. 1367, 1377 (2020) (emphasis added); see also, e.g., BARBARA BENNETT WOODHOUSE, THE ECOLOGY OF CHILDHOOD: HOW OUR CHANGING WORLD THREATENS CHILDREN’S RIGHTS 208 (2020) (calling for a “transformation of the macrosystems that shape and channel our policies affecting children—a transformation that must begin by putting children’s needs and rights at the center rather than on the margins”); Guggenheim, supra note 12, at 955 (arguing for “laws guaranteeing children health care, food, clothing, shelter, free child care, and other benefits designed to minimize the disadvantages many children currently endure because of their bad luck of having been born poor”).

32 See infra Section I.A. 33 See infra Section I.B; Online Appendix.

I. HOW DO CHILDREN FARE AT THE SUPREME COURT?

34 See infra Section I.C. 35 See infra Section II.A. 36 See infra Section II.B. 37 See infra notes 307–311.

38 Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2042–43 (2021). 39 Heritage Foundation Review of the 2020–21 Supreme Court Term, C-SPAN (July 8, 2021),

https://www.c-span.org/video/?513234-1/heritage-foundation-review-2020-21-supreme-court-term [https://perma.cc/HY8E-UZYK].

40 Melanie Zayas, “She Made History”: Legal Expert, Community Reacts to SCOTUS Ruling of Former Cheerleader, CBS AUSTIN (June 23, 2021, 9:24 PM), https://cbsaustin.com/news/nationworld/she-made-history-legal-expert-community-reacts-to-scotus-ruling-of-former-cheerleader [https://perma.cc/MZW7-SBMX].

41 See infra Section I.A. There is, of course, a degree of arbitrariness in any effort to write about “children” as a class, insofar as age bears an imperfect correlation to development. Nonetheless, for the sake of simplicity and consistency with broader usage, I use the age of majority, eighteen years, to demarcate children from nonchildren. 42 Rodham, supra note 19, at 499. 43 Id. 44 Homer H. Clark Jr., Children and the Constitution, 1992 U. ILL. L. REV. 1, 40.

45 Michael J. Dale, The Supreme Court and the Minimization of Children’s Constitutional Rights: Implications for the Juvenile Justice System, 13 HAMLINE J. PUB. L. & POL’Y 199, 228 (1992); see also, e.g., Michele D. Sullivan, Note, From Warren to Rehnquist: The Growing Conservative Trend in the Supreme Court’s Treatment of Children, 65 ST. JOHN’S L. REV. 1139, 1142 (1991) (arguing that a “trend apparent in the Court’s recent decisions will continue to the detriment of children’s individual rights”).

46 See MEZEY, supra note 3 and accompanying text. 47 Martin Guggenheim & Randy Hertz, Selling Kids Short: How “Rights for Kids” Turned into “Kids for Cash,” 88 TEMP. L. REV. 653, 660 (2016). As I note below, Guggenheim and Hertz were on to something in their perception that the pre-1977 Court was more solicitous to children. See infra Section I.C; Table 1.

48 MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS 252 (2005). 49 Guggenheim, supra note 2, at 486. 50 Dailey & Rosenbury, supra note 1, at 1461; see also, e.g., Minow, supra note 20, at 277 (describing the Court’s track record of “legal ambivalence in the face of repeated efforts by advocates to extend constitutional rights to children”).

51 Dailey & Rosenbury, supra note 1, at 1462.

52 Parham v. J.R., 442 U.S. 584, 602 (1979). 53 Clark, supra note 44, at 40. 54 Id. 55 Dailey & Rosenbury, supra note 1, at 1463–64; see also Anne C. Dailey, Children’s Constitutional Rights, 95 MINN. L. REV. 2099, 2100 (2011) (criticizing the Court’s “long history of denying children the full range of constitutional rights”).

56 Guggenheim & Hertz, supra note 47, at 659. 57 The most notable of these is Professor Mezey’s finding that children won fewer than half of their

cases before the Court between 1953 and 1993. See MEZEY supra note 3, at 18.

58 See, e.g., Dailey & Rosenbury, supra note 1, at 1457 (arguing that the Court’s mistake has been to

follow the authorities framework).

59 Emily Buss, Constitutional Fidelity Through Children’s Rights, 2004 SUP. CT. REV. 355, 363. 60 Id. at 355, 364.

61 Another example of an account that suggests the Court is insufficiently attentive to the interests of children without making any empirical claims is Professor Justin Driver’s crucial contribution, The Schoolhouse Gate. See JUSTIN DRIVER, THE SCHOOLHOUSE GATE: PUBLIC EDUCATION, THE SUPREME COURT, AND THE BATTLE FOR THE AMERICAN MIND 425 (2018) (arguing that although the Court has made “meaningful contributions” in the field of students’ constitutional rights, it has “in recent decades . . . often issued either erroneous or deficient opinions . . . [that] have imposed baleful consequences” for children and society).

62 Some children’s law advocates have explicitly argued as much. See infra text accompanying

notes 253–255.

63 See infra Section III.B. 64 See infra text accompanying note 125. 65 See, e.g., Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) (holding that a Title IX action

may be brought against a school board in cases of student-on-student harassment).

66 MEZEY, supra note 3, at 18; see also Susan Gluck Mezey, Constitutional Adjudication of Children’s Rights Claims in the United States Supreme Court, 1953–92, 27 FAM. L.Q. 307, 317 (1993) (performing a similar analysis three years earlier).

67 Mezey, supra note 66, at 314. 68 414 U.S. 563, 568–69 (1974). 69 See Cheryl Bratt, Top-Down or from the Ground?: A Practical Perspective on Reforming the Field of Children and the Law, 127 YALE L.J.F. 917, 919 (2018) (“Youth-driven efforts within our current framework, rather than widespread constitutional reform directed by adults, are more likely to produce real changes to the ways in which society views, honors, and treats children.”); see also Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 STAN. L. REV. 821, 852 (2021) (advocating

greater scholarly attention to “how movements build and shift power—beyond courts and the Constitution—and prefigure the economic, social, and political relationships of the world they are working to build”).

70 Indeed, this is one of the Article’s central implications: that little progress has been made along major dimensions of child welfare even as the Court has ruled in children’s favor casts doubt on its ability to effectuate widespread change. See infra Section III.C.

71 See Batterton v. Francis, 432 U.S. 416, 428–31 (1977). 72 See New Jersey v. T.L.O., 469 U.S. 325, 327–28 (1985). 73 See Jones v. Mississippi, 141 S. Ct. 1307, 1314 (2021).

74 See 323 U.S. 214, 242 (1944) (Murphy, J., dissenting). 75 576 U.S. 644, 668 (2015) (“Without the recognition, stability, and predictability marriage offers, [same sex couples’] children suffer the stigma of knowing their families are somehow lesser. They also suffer . . . significant material costs . . . .”); cf. Kerry Abrams, The Rights of Marriage: Obergefell, Din, and the Future of Constitutional Family Law, 130 CORNELL L. REV. 501, 526, 556 (2018) (identifying this line of argument in the majority’s opinion, but noting how it “appears to put unmarried people and their children in jeopardy”); Melissa Murray, Obergefell v. Hodges and Nonmarriage Inequality, 104 CALIF. L. REV. 1207 (2016) (arguing that Obergefell’s logic raises serious concerns for individuals who choose not to marry).

76 See, e.g., Shinn v. Ramirez, 142 S. Ct. 1718, 1729 (2022) (describing a capital sentence imposed on a defendant who “repeatedly beat his girlfriend’s 4-year-old daughter,” who later died from her injuries).

77 See id. at 1727 (denying a federal habeas court’s power to conduct fact-finding regarding a defendant’s claim of ineffective assistance of trial counsel where the defendant failed to develop such a record in state post-conviction proceedings).

78 More precisely, I entered the following search string into Westlaw: “adv: ‘child!’ or ‘minor’ or ‘juvenile!’ or ‘student!’” I subsequently performed a search of Supreme Court decisions containing the word “youth” during the same time period, which returned 133 unique cases. Nearly all of those cases, however, included the term “youth” in a party’s name in a case in which the Court denied certiorari. The remaining cases referred to “youth” who were above the age of eighteen or in a way that did not affect the ruling at hand, and thus fell outside my ultimate dataset. See, e.g., Durst v. United States, 434 U.S. 542, 544 (1978) (discussing the Federal Youth Corrections Act, which applies to youth offenders above the age of eighteen).

79 Justices 1789 to Present, SUP. CT. OF THE U.S., https://www.supremecourt.gov/about/

members_text.aspx [https://perma.cc/5798-6T38].

80 See, e.g., Mark Tushnet, Observations on the New Revolution in Constitutional Criminal Procedure, 94 GEO. L.J. 1627, 1627 (2006) (discussing the Warren Court’s “revolution in constitutional criminal procedure”).

81 Justices 1789 to Present, supra note 79. 82 The three children’s victories were Oyama v. California, 332 U.S. 633, 644–47 (1948), which struck down California’s Alien Land Law because it denied a minor U.S. citizen child of a Japanese father the right to acquire land in violation of the child’s right to equal protection; Haley v. Ohio, 332 U.S. 596, 599 (1948), which held that police violated due process when they coerced a confession from a fifteenyear-old suspect because “when, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used”; and Everson v. Board of Education, 330 U.S. 1, 17 (1947), which permitted a school district’s policy of reimbursing parents for educational transportation costs to public and private schools, including religious schools. The two children’s losses were Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 66 (1953), which applied the statute of limitations in the

Portal-to-Portal Act to bar actions brought by the U.S. government to enforce violations of federal child labor prohibitions, and Francis v. Southern Pacific Co., 333 U.S. 445, 447 (1948), which ruled that children could not recover in a wrongful death suit, over a forceful dissent by Justice Hugo Black pointing to the need to protect children’s interests.

83 See, e.g., Eric E. v. L.A. Cnty. Dep’t of Child. & Fam. Servs., 142 S. Ct. 2710 (2022) (denying

certiorari).

84 See supra text accompanying note 76. 85 See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S 819, 845 (1995) (holding that the university’s denial of funding to a college student organization based on its religious viewpoint violated the First Amendment); Tuten v. United States, 460 U.S. 660, 663, 663 n.3, 668 (1983) (declining to set aside a defendant’s prior conviction under the Federal Youth Corrections Act, which generally applies to offenders ages eighteen to twenty-six).

86 See Dailey & Rosenbury, supra note 1, at 1456 n.9; see also supra note 41. 87 See infra Section I.B.3.

TABLE 1: PERCENTAGE OF CASES FALLING WITHIN SUBSTANTIVE LAW CATEGORIES

Case Type

Percentage of Cases

Students’ Constitutional Rights

Juvenile Justice & Criminal Procedure

Child Inheritance

Protecting Child Victims

Statutory Benefits / Protections

Third-Party Beneficiary of Adult Constitutional

Rights

20.2%

10.3%

7.3%

16.4%

33.6%

12.2%

88 See supra text accompanying notes 28–30. 89 See infra Part III.

90 Compare Brown v. Bd. of Educ., 347 U.S. 483, 495 (holding that segregated public schools violate the Equal Protection Clause), and Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28, 30 (1971) (upholding a robust school-integration remedy), with Milliken v. Bradley, 418 U.S. 717, 752–53 (1974) (overturning a district court’s effort to impose an interdistrict bussing order to remedy segregation in Detroit public schools).

91 393 U.S. 503, 506 (1969). 92 Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2053 (2021). 93 I categorize these cases as students’ constitutional rights cases rather than criminal procedure cases

because they arise on school grounds and involve school-level (rather than criminal) punishment.

94 557 U.S. 364 (2009). 95 U.S. CONST. amend. IV; see Redding, 557 U.S. at 368–69, 374. 96 Redding, 557 U.S. at 379. The Court found that school officials were protected by qualified

immunity and remanded Redding’s claim against the school district. Id.

97 469 U.S. 325, 347–48 (1985). 98 419 U.S. 565, 581 (1975). 99 430 U.S. 651, 682 (1977).

100 387 U.S. 1, 7–8, 57–59 (1967). 101 Id. at 13, 33, 41, 55, 57. 102 See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971) (holding that the Due Process

Clause does not require a jury trial in state juvenile court proceedings).

103 564 U.S. 261 (2011). 104 Id. at 265–66. 105 Id. at 268. 106 Id. at 272. 107 See Buss, supra note 59, at 355. Professor Buss’s critique predated J.D.B. and the sentencing

decisions.

108 543 U.S. 551, 578 (2005). 109 567 U.S. 460 (2012). As Professor Guggenheim has argued, the Court’s pro-child rulings in many of these sentencing cases suggests that advocates have been wise to argue that children ought to be treated as children, and thus entitled to special rights in the context of sentencing. See Guggenheim, supra note 2, at 500.

110 430 U.S. 762 (1977). 111 Id. at 774, 776. 112 Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972). 113 439 U.S. 259, 275–76 (1978). 114 495 U.S. 103, 106–08 (1990). 115 Id. at 109. 116 Id. (quoting New York v. Ferber, 458 U.S. 747, 756–58 (1982 .

117 576 U.S. 237, 249–51 (2015). 118 Id. at 240–41. 119 Id. at 241. 120 Id. 121 Id. at 241–42. 122 Id. at 242. 123 Id. at 247. 124 Id. at 247–48. 125 See supra notes 28–29 and accompanying text. The Court has ruled against children’s interests in statutory benefits cases, too. In Dandridge v. Williams, for example, the Court rejected a challenge to Maryland’s imposition of a $250 statutory cap on the amount of aid a family could receive per month, even if the family is calculated to have a higher standard of need. 397 U.S 471, 478, 490 (1970).

126 Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 63 (1992).

127 20 U.S.C. § 1412(a)(1). 128 137 S. Ct. 988, 1001 (2017). 129 Id. 130 See supra note 75 and accompanying text. 131 431 U.S. 494, 506 (1977). 132 466 U.S. 429, 430 (1984). 133 Id. 134 Id. at 430–33. 135 Id. at 434.

136 I acknowledge that one limitation of this coding strategy is that it subsumes some cases in which the court invokes children’s interests to extend parental rights into the category of wins. This assumes parents’ and children’s interests can often be aligned, as for example in cases like Moore where a grandparent advanced her grandchildren’s interest in court. Those who critique the authorities framework like Professors Dailey and Rosenbury may legitimately disagree with this choice on the ground that sometimes parental and child interests are in conflict. Recognizing this point, I have attempted to control for instances in which parents’ and children’s interests diverge by placing such cases within the value judgment category described below. Moreover, I offer additional perspectives on the authorities framework debate and the results of this paper in Section III.A.

137 572 U.S. 434, 439 (2014). 138 Id. at 553, 555, 442. Both of these arguments were plausible. Indeed, Justice Sonia Sotomayor agreed with the victim in dissent. Id. at 481 (Sotomayor, J., dissenting). Chief Justice Roberts, by contrast, sided with the defendant in a separate dissent. Id. at 472 (Roberts, C.J., dissenting).

139 Id. at 458.

140 Id. at 461 (quoting Respondent Amy’s Brief on the Merits at 57, Paroline, 572 U.S. 434 (No. 12-

8561 .

141 The Court has struck down some state laws that limit such access while upholding others. Compare, e.g., Bellotti v. Baird, 443 U.S. 622, 650–51 (1979) (striking down parental notification law), with Lambert v. Wicklund, 520 U.S 292, 293 (1997) (per curiam) (upholding Montana’s parental notice law). This approach further differentiates my dataset from MEZEY, supra note 3, at 18. Eight of the fortyseven cases in her sample are abortion cases, which she codes as wins or losses with respect to the minor seeking access to the procedure. See id. at 323. While I am personally sympathetic to that view, I also recognize that it assumes a particular view of the unborn fetus that is deeply contested.

142 See, e.g., Brief of Amicus Curiae Lee J. Strang in Support of Petitioners at 23, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (No. 19-1392) (arguing that “[t]oday’s more-accurate medical knowledge shows that unborn human beings are human beings from the moment of conception”); John Finnis & Robert P. George, Equal Protection and the Unborn Child: A Dobbs Brief, 45 HARV. J.L. & PUB. POL’Y 927, 931–32 (2022) (arguing that “among the legally informed public [around the ratification of the meaning of ‘any person’—in a provision constitutionalizing the equal basic rights of persons—plainly encompassed unborn human beings”).

the Fourteenth Amendment],

143 Lee v. Weisman, 505 U.S. 577, 599 (1992). 144 Compare, e.g., NATHAN S. CHAPMAN & MICHAEL W. MCCONNELL, AGREEING TO DISAGREE 142 (2023) (arguing against the view that religion must be kept outside of schools entirely), with Micah Schwartzman & Nelson Tebbe, Establishment Clause Appeasement, 2019 SUP. CT. REV. 271, 294–95 (criticizing the liberal Justices’ apparent strategy of attempting to appease the conservative Justices in their efforts to break down the barrier between church and state in public schools).

145 521 U.S. 203, 209–10 (1997). 146 Id. at 213. 147 452 U.S. 18, 32–33 (1981).

148 See, e.g., Santosky v. Kramer, 455 U.S. 745, 747–48 (1982) (holding that a state must provide

clear and convincing evidence before irrevocably terminating parental rights).

149 452 U.S. at 20, 23. 150 See Online Appendix A for wins and losses, Online Appendix B for ties, and Online Appendix C

for value judgments.

TABLE 2: CHARACTERISTICS OF EXCLUDED CASES

Reason for Exclusion

Cases Coded as Value Judgments

Disputes over Religion in School

Disputes over Parental Rights Where Unclear If Children’s

Interests Align with Parents’ Interests

Abortion Cases

K–12 Education Not Involving Religion

Hague Convention Cases Concerning

Child Abductions

Free Speech / Obscenity

Child Welfare

Other*

Cases Coded as Ties

Total Cases

Note. *“Other” included cases implicating Indian law, affirmative action, and violent video games that occurred at a low frequency.

151 See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 487 (1954) (“In each of the cases, minors [sued]

through their legal representatives . . . .”).

152 See, e.g., United States v. Windsor, 570 U.S. 744, 772 (2013) (invalidating the Defense of Marriage Act because “it humiliates tens of thousands of children now being raised by same-sex couples,” though children themselves were not parties to the case).

153 Most of the cases in my dataset were before the Court as an exercise of its certiorari jurisdiction. Some cases, however, arrived at the Court under its mandatory appellate jurisdiction. I code the appellant in such cases as tantamount to a petitioner seeking the Court’s discretionary review; I code the appellee as the equivalent of a respondent.

154 See infra Section II.B.2. 155 See supra Section I.B.2. 156 Id. 157 See supra notes 19–21 and accompanying text; see also infra Section III.B.

TABLE 3: CHARACTERISTICS OF WIN–LOSS-CODED CASES

Criteria

Percentage

Minor Party

Interest Aligned with Petitioner

Juvenile Defendant

Children’s Constitutional Right Claim

54.9%

54.9%

9.5%

36.3%

158 My goal in this Article is to cast light on the question whether children perform worse than, equal to, or better than a coin flip in cases at the Supreme Court. Given limits on how I have been able to code each case, I do not aim to show statistical relationships between case outcomes and particular variables— and for that reason do not run regression models. See infra note 176 (discussing this choice).

159 Because cases in the dataset are coded for only two outcomes—winning or losing—the loss rate

is simply one minus the win rate. For simplicity of exposition, Table 1 reports only win rates.

160 See supra Section I.A.

TABLE 4: PROBABILITY THAT CHILDREN WIN IN CASES AT THE SUPREME COURT

Chief Justiceship

Roberts

Rehnquist

Burger

Warren

All Cases

69.0%

0.014*

51.4%

0.814

62.7%

0.006**

80.0%

0.001**

62.6%

0.00005*

Notes. Null hypothesis is that the Court is equally likely to rule for or against children. p-value is calculated using a one-sample test of proportions. * = Significant at 0.05. ** = Significant at 0.01. Significance levels refer to two-sided tests.

161 See supra notes 45–49 and accompanying text.

TABLE 5: PROBABILITY THAT CHILDREN WIN, MINOR PARTY OR NONPARTY

Minor Party?

63.9%

0.001**

61.0%

0.017*

Notes. Null hypothesis is that the Court is equally likely to rule for or against children. p-value is calculated using a one-sample test of proportions. * = Significant at 0.05. ** = Significant at 0.01. Significance levels refer to twosided tests.

162 I make no claims as to statistical correlations between these variables and the Court’s overall pro-

child valence.

163 Adam Feldman, Empirical SCOTUS: The Singular Relationship Between the D.C. Circuit and the Supreme Court, SCOTUSBLOG (Oct. 3, 2019), https://www.scotusblog.com/2019/10/ empirical-scotus-the-singular-relationship-between-the-d-c-circuit-and-the-supreme-court/ [https://perma.cc/A69Z-TTBQ].

TABLE 6: PROBABILITY THAT CHILDREN WIN, PETITIONER OR RESPONDENT

Petr or Resp?

Petitioner

Respondent

76.4%

0.003**

45.8%

0.021*

Notes. Null hypothesis for petitioner cases is that the Court will rule for children in 64.4% of all cases. Null for respondent cases is that the Court will rule for children in 35.6% of cases. p-value is calculated using a one-sample test of proportions. * = Significant at 0.05. ** = Significant at 0.01. Significance levels refer to two-sided tests.

164 Id. (noting “outcomes coded as ‘neither’ [including] judgments affirming in part and reversing in

part [and] other decision[s] that did not clearly identify” a winner).

TABLE 7: PROBABILITY THAT CHILDREN WIN, MINOR CRIMINAL DEFENDANT

Minor Criminal

Defendant?

64.0%

0.161

62.4%

0.000**

Notes. Null hypothesis is that the Court is equally likely to rule for or against children. p-value is calculated using a one-sample test of proportions. ** = Significant at 0.01. Significance levels refer to two-sided tests.

TABLE 8: PROBABILITY THAT CHILDREN WIN, CONSTITUTIONAL RIGHTS CLAIMS

Child Constitutional

Right Claim?

64.2%

61.7%

0.006**

0.003**

Notes. Null hypothesis is that the Court is equally likely to rule for or against children. p-value is calculated using a one-sample test of proportions. ** = Significant at 0.01. Significance level refers to two-sided test.

165 See supra Section I.B.2 (describing these kinds of nonchild constitutional cases).

II. IMPLICATIONS FOR JUDICIAL DECISION-MAKING THEORY

166 Karl Llewellyn, Some Realism About Realism—Responding to Dean Pound, 44 HARV. L. REV.

1222, 1222 (1931).

167 Id. 168 NEAL DEVINS & LAWRENCE BAUM, THE COMPANY THEY KEEP: HOW PARTISAN DIVISIONS

CAME TO THE SUPREME COURT 3 (2019).

169 See Dan M. Kahan, Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1, 20 (2011) (describing the phenomenon of identity-protective cognition, or the “psychic pressure” an individual faces to “resist propositions” that would reduce “the social standing or self-esteem that person enjoys by virtue of his or her group’s reputation”); see also SEGAL & SPAETH, supra note 7, at 1 (advancing attitudinal model of judging under which political ideologies drive rulings).

170 Adam Liptak, Justices Offer Receptive Ear to Business Interests, N.Y. TIMES (Dec. 18, 2010),

https://www.nytimes.com/2010/12/19/us/19roberts.html [https://perma.cc/NH47-V44K].

171 Adam Liptak, An Extraordinary Winning Streak for Religion at the Supreme Court, N.Y. TIMES (Apr. 5, 2021), https://www.nytimes.com/2021/04/05/us/politics/supreme-court-religion.html [https://perma.cc/G9HU-PSDV].

172 Epstein et al., supra note 5, tbl.1. 173 Epstein & Posner, supra note 5, at 323. Professors Epstein and Posner do not present an exact number, but backing out the data from fig.2, I am able to discern that religious litigants prevailed in 56 of the 95 religion cases in their dataset, or 58.9%. Id.

174 See id. at 325 fig.2. 175 Epstein et al., supra note 5, tbl.1 (finding a 44.0% business win rate in the Rehnquist Court, a

42.6% win rate in the Burger Court, and a 28.4% win rate in the Warren Court).

176 In an ideal world, regression models could help point to factors that contribute to children’s win rate. Yet the plethora of hard-to-code variables that might influence the outcomes of children’s law cases—such as the sympathy of case facts, the strength of legal arguments, and the quality of attorney advocacy—makes it difficult to generate a dataset conducive to such models. My hypotheses are thus grounded in reason and intuition and should be evaluated with healthy skepticism.

177 See KAY LEHMAN SCHLOZMAN, SIDNEY VERBA & HENRY E. BRADY, THE UNHEAVENLY CHORUS: UNEQUAL POLITICAL VOICE AND THE BROKEN PROMISE OF AMERICAN DEMOCRACY 320–21, 345 (2012) (describing corporate interests’ outsized political influence).

178 Lee Drutman, How Corporate Lobbyists Conquered American Democracy, ATLANTIC (Apr.

20, 2015), https://www.theatlantic.com/business/archive/2015/04/how-corporate-lobbyists-conqueredamerican-democracy/390822/ [https://perma.cc/RX6U-3J47].

179 Id. 180 Timothy M. Gill, Why the Power Elite Continues to Dominate American Politics, WASH. POST (Dec. 24, 2018), https://www.washingtonpost.com/outlook/2018/12/24/why-power-elite-continuesdominate-american-politics/ [https://perma.cc/4JDX-CF6T].

181 Epstein et al., supra note 5, tbl.2 (finding that during the Roberts Court era, 60.7% of Republicanappointed Justices’ votes cast in business cases were pro-business, compared to 51.4% of Democratappointed Justices’ votes).

182 Epstein & Posner, supra note 5, at 9. 183 Frank Newport, The Religion of the Supreme Court Justices, GALLUP (Apr. 8, 2022),

https://news.gallup.com/opinion/polling-matters/391649/religion-supreme-court-justices.aspx [https://perma.cc/7QA6-LV4B].

184 DEVINS & BAUM, supra note 168. 185 See Kahan, supra note 169.

186 The AARP permits individuals to join as full members when they turn fifty. See What Is AARP’s Membership Age Requirement?, AARP, https://www.aarp.org/membership/age-requirement [https://perma.cc/96GS-YUWH]. The Court’s youngest member, Justice Amy Coney Barrett, is fiftytwo. See Current Members, SUP. CT. OF THE U.S., https://www.supremecourt.gov/about/biographies.aspx [https://perma.cc/69YQ-LSXR].

187 Only two current Justices do not have children of their own: Justices Sotomayor and Kagan. See

What Is AARP’s Membership Age Requirement, supra note 186.

188 As recently as 2017, all of the Court’s members were millionaires in terms of maximum net worth. See Dave Levinthal, Lateshia Beachum & Carrie Levine, Supreme Court a Millionaire’s Club, CTR. FOR PUB. INTEGRITY (June 8, 2017), https://publicintegrity.org/politics/supreme-court-a-millionaires-club/ [https://perma.cc/C69L-ALX9].

189 More specifically, Chief Justice Roberts and Justices Thomas, Sotomayor, Gorsuch, Kavanaugh, and Barrett are all graduates of private high schools. The Court’s 66% private high school graduation rate far exceeds the 9% rate among all American graduates. See Alia Wong, The Private-School the Supreme Court, ATLANTIC (July 17, 2018), https://www.theatlantic.com/ Persuasion of education/archive/2018/07/supreme-court-private-school/565211/ [https://perma.cc/X2EB-T34M]; Bryn Stole, Amy Coney Barrett: Mother of 7, Metairie Native, Solid Conservative . . . Next Supreme Court Justice?, NOLA.COM (July 6, 2018), https://www.nola.com/article_d71cb604-ae33-5892-884804d2113bd7a6.html [https://perma.cc/3UXY-9SAZ].

190 See, e.g., Lukas J. Wolf et al., The Salience of Children Increases Adult Prosocial Values, 13 SOC. PSYCH. & PERSONALITY SCI. 160, 165 (2022) (finding that adults demonstrate more prosocial behavior when children are salient).

191 We Believe in America: 2012 Republican Party Platform, AM. PRESIDENCY PROJECT (Aug. 27, 2012), https://www.presidency.ucsb.edu/documents/2012-republican-party-platform [https://perma.cc/ XS9Y-3WNS].

192 Barbara Bennett Woodhouse, From Property to Personhood: A Child-Centered Perspective on

Parents’ Rights, 5 GEO. J. ON FIGHTING POVERTY 313, 314 (1998).

193 See Dailey & Rosenbury, supra note 1, at 1458–59; Prince v. Massachusetts, 321 U.S. 158, 166

(1944) (upholding anti-child labor law under parens patriae power).

194 Dailey & Rosenbury, supra note 1, at 1460–61. 195 In these nonconstitutional cases, when the Court interprets a new statute for the first time, the whole point is that the Court has yet to announce what the baseline is, such that a ruling either for or against children is available. By contrast, in areas of the law where children have already long been understood not to enjoy a constitutional right, there is only one direction for the Court to move the law.

196 See supra text accompanying notes 125–135. 197 See, e.g., Roper v. Simmons, 543 U.S. 551, 568 (2005) (invalidating juvenile death penalty); Miller v. Alabama, 567 U.S. 460, 470 (2012) (invalidating mandatory juvenile life imprisonment without parole).

198 See, e.g., J.D.B. v. North Carolina, 564 U.S. 261, 281 (2011) (holding that police must provide Miranda warnings to youth even in circumstances that would not call for them for adults); Kaupp v. Texas, 538 U.S. 626, 631–32 (2003) (finding that the juvenile defendant was “arrested” within the meaning of the Fourth Amendment because, among other things, the police had “rous[ed] an adolescent out of bed in the middle of the night”); Crane v. Kentucky, 476 U.S. 683, 691 (1986) (holding that juvenile offender had due process right to introduce evidence that he was a “young, uneducated boy who was kept against his will in a small, windowless room for a protracted period of time until he confessed”); Gallegos v. Colorado, 370 U.S. 49, 54–55 (1962) (rejecting the state’s argument that “the youth and immaturity of the petitioner . . . [is] irrelevant” to determining if confession was voluntary).

199 See, e.g., Plyler v. Doe, 457 U.S. 202, 219–20, 230 (1982) (striking down a Texas law denying undocumented children access to free public education because children are “special members” of an underclass who are not “comparably situated” to adults); Trimble v. Gordon, 430 U.S. 762, 769–70, 776 (1977) (ruling for illegitimate children on equal protection grounds because such “children can affect neither their parents’ conduct nor their own status”).

200 For instance, one could hypothesize (in a way that overlaps with the baselines explanation) that lower federal courts and state supreme courts have an anti-child bent, such that when the Supreme Court corrects their errors, the result is a picture of the Court as pro-child.

201 See Feldman, supra note 163.

202 See generally Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 COLUM. L. REV. 1643 (2000) (describing how the Court came to acquire complete discretionary control over its docket); Felix Frankfurter & James M. Landis, The Supreme Court Under the Judiciary Act of 1925, 42 HARV. L. REV. 1 (1928) (describing the impact of the 1925 Judiciary Act on the discretionary power of the Court). 203 See Hartnett, supra note 202, at 1708. 204 One limitation to my data is that I am unable to evaluate an important counterhypothesis: the Court is actually relatively unconcerned with children’s cases at the certiorari stage. That is to say, I cannot conclude that the Court is actually more likely to grant review of children’s cases where they’ve lost below than, say, business or religion cases where those groups have lost below. To shed light on that question, I would need to tally up the total number of petitions for certiorari filed by the respective group (children, businesses, and religious litigants) and then calculate the percentage granted over the relevant time period—an arduous task I have not yet performed. I am grateful to Professor Buss for flagging this important observation.

205 See Tolan v. Cotton, 572 U.S. 650, 661 (2014) (Alito, J., concurring in the judgment) (“[E]rror correction . . . is outside the mainstream of the Court’s functions.” (quoting STEPHEN M. SHAPIRO, KENNETH S. GELLER, TIMOTHY S. BISHOP, EDWARD A. HARTNETT & DAN HIMMELFARB, SUPREME COURT PRACTICE § 5.12(c)(3) (10th ed. 2013 .

206 Kyles v. Whitley, 514 U.S. 419, 422 (1995) (“[O]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” (quoting Burger v. Kemp, 483 U.S. 776, 785 (1987 ; see also STEPHEN VLADECK, THE SHADOW DOCKET: HOW THE SUPREME COURT USES STEALTH RULINGS TO AMASS POWER AND UNDERMINE THE REPUBLIC 106 (2023) (explaining the Court’s prominent use of the shadow docket to intervene in death penalty cases).

207 For a discussion of other Supreme Court decisions applying similar harm-avoider reasoning, see

Aaron Tang, Harm-Avoider Constitutionalism, 109 CALIF. L. REV. 1847 (2021).

208 430 U.S. 762, 763 (1977). 209 Id. at 768–69. 210 Id. at 769–70 (first quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1971 . 211 Id. at 770. 212 457 U.S. 202 (1982).

213 Id. at 205. 214 Id. at 223. 215 Id. at 220. The Court also explained that children lacked any ability to obtain an education by changing their legal status. See id. (criticizing the school district’s discriminatory policy because it “imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control”).

216 Id. (quoting Trimble, 430 U.S. at 770). 217 497 U.S. 836 (1990). 218 Id. at 840. 219 Id. at 841–43. 220 Id. at 842, 852. 221 Id. at 851. 222 Id. at 857. 223 Id. at 856.

224 See id. at 855. 225 Aaron Tang, Consequences and the Supreme Court, 117 NW. U. L. REV. 971, 976 (2023); Tang,

supra note 207, at 1854.

226 Tang, supra note 207, at 1854; see also Aaron Tang, (Threaten) to Pack the Courts, N.Y. TIMES (Oct. 27, 2020), https://www.nytimes.com/interactive/2020/10/27/opinion/supreme-court-packing.html [https://perma.cc/L8ZK-L7LH] (describing the “least harm principle” and how it relates to the Court’s rulings).

227 See, e.g., Mathews v. Lucas, 427 U.S. 495, 506 (1976) (declining to declare nonmarital children

a suspect class).

228 See generally Aaron Tang, Reverse Political Process Theory, 70 VAND. L. REV. 1427, 1430

(2017) (describing political process theory’s demise).

229 One piece of evidence in possible support of this view is that the Court is not especially likely to rule for children in cases involving minor parties: whereas they prevail in 63.3% of such cases, they still win in 61.3% of cases where minors are not parties (and where their helplessness may be less visible). See supra Table 5.

III. IMPLICATIONS FOR CHILDREN AND THE LAW

230 See generally Tang, supra note 207 (describing this decisional approach). Importantly, this leastharm approach differs from proposals to weigh the marginal benefit produced by rulings in either direction. That kind of approach has its defenders in the academy and international constitutional practice but remains largely unaccepted in U.S. constitutional law. Compare JAMAL GREENE, HOW RIGHTS WENT WRONG 110 (2021) (describing general features of proportionality review in foreign courts, under which judges sometimes ask whether “the government’s policy [is] seriously out of proportion to the burdens it imposes on rights”), and RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS 186 (2001) (arguing in favor of “adjudication guided by a comparison of the consequences of alternative resolutions of the case”), with David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 MICH. L. REV. 729, 748 (2021) (arguing that the Court eschews reasoning in which “outcomes [are] dictated by an instrumentalist inquiry into the welfare effects or distributional implications of a disputed government action or legal rule”). The least-harm principle concentrates on the avoidability of each side’s harms, not the magnitude out of concern that magnitude calculations will often be deeply subjective and incommensurable. See Tang, supra note 207, at 1878.

231 This seems particularly plausible for the Warren Court era, but less so during subsequent Chief

Justiceships.

232 See infra notes 307–311 and accompanying text. 233 See Dailey & Rosenbury, supra note 1; Guggenheim, supra note 12. 234 I use the debate between Professors Dailey and Rosenbury and Professor Guggenheim to illustrate the degree to which cynicism over the Supreme Court’s treatment of children has pervaded the field. In doing so, I by no means intend to suggest that every children’s law scholar has refrained from advancing radical change. I highlight many of these thoughtful and ambitious proposals below. See infra Section III.B.

235 Dailey & Rosenbury, supra note 1. 236 Id. at 1457, 1462. 237 Id. at 1467–72.

238 Id. at 1506–07. 239 See id. at 1529; see also DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 202

(1989).

240 See Dailey & Rosenbury, supra note 1, at 1507–08; see also Parham v. J.R., 442 U.S. 584, 609–

10, 629 (1979).

241 Guggenheim, supra note 12, at 943. 242 Id.; see Dailey & Rosenbury, supra note 1, at 1472. 243 Id. at 955–57. 244 See id. at 945–46 (noting how cases like DeShaney “could easily be reversed without the benefit

of a new law for children, and without dismantling the authorities framework”).

245 Id. at 955.

246 Dailey, supra note 55, at 2161, 2176. 247 Dailey & Rosenbury, supra note 1, at 1523. Dailey and Rosenbury also touted the potential for childcare legislation as one benefit of their proposed framework. See id. at 1521 (“Our framework[] . . . opens up space to advocate for state funding of early educational interventions in the form of high-quality daycare and preschool.”).

248 In one place in their article, Dailey and Rosenbury suggest that certain existing state and federal statutory welfare programs “provide a blueprint for what a full-bodied scheme of affirmative constitutional rights might look like,” but they stop short of calling for a more comprehensive child welfare infrastructure. See id. at 1531.

249 See supra Section I.A; see, e.g., ROBERTS, supra note 27, at 269 (“The difficulty, of course, is finding the political will to implement [a real child welfare] program.”); Minow, supra note 20, at 294 (“I have no . . . hope for mobilizing public support for children, especially poor children.”).

250 See, e.g., Dailey & Rosenbury, supra note 1, at 1464 (“Rather than bestowing broad autonomy rights on children, the Court regularly reiterates the view of children as dependent beings with lesser rights than adults.”); id. (criticizing the Court for its belief that “[c]hildren, by definition, are not assumed to have the capacity to take care of themselves”); id. at 1471 (“In both Michael H. and Troxel . . . [the Court] did not take children’s interests into account in any meaningful way. Parental rights maintain their hold on the American legal imagination . . . .”); id. at 1477 (“[T]he Supreme Court has made it exceedingly clear that the U.S. Constitution confers no affirmative entitlements on children.”); id. at 1507 (criticizing Parham because its “limited consideration of children’s interests simply gave way to parental rights”); id. at 1528 (“The Supreme Court has stated outright that children have no affirmative rights . . . .”); id. at 1533 (critiquing the Court for Morse v. Frederick because it “undervalued the importance of children’s speech interests”).

251 See id. at 1478.

252 See Guggenheim, supra note 12, at 956 (recognizing that Dailey and Rosenbury may have decided not to propose more radical changes in part because “the constitutional case against structural inequality is challenging given current doctrine” at the Supreme Court).

253 See MEZEY, supra note 3, at 7 (quoting a number of children’s rights lawyers as describing the

low odds of victory at the Supreme Court).

254 Id. 255 Put another way, we seem far away from the heady days when child liberationists argued that “the rights, privileges, duties, [and] responsibilities of adult citizens [should] be made available to any young person, of whatever age, who wants to make use of them.” JOHN HOLT, ESCAPE FROM CHILDHOOD: THE NEEDS AND RIGHTS OF CHILDREN 18 (1974).

256 See supra Table 4. 257 Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 379 (2009). 258 430 U.S. 651, 683 (1977).

259 See Zelman v. Simmons-Harris, 536 U.S. 639, 643–45 (2002) (rejecting an Establishment Clause

challenge against a voucher program that provided tuition assistance to low-income students).

260 See Aaron Y. Tang, Privileges and Immunities, Public Education, and the Case for Public School

Choice, 79 GEO. WASH. L. REV. 1103, 1140–49 (2011).

261 To be sure, a number of children’s law scholars have recognized the significance of legislative reforms; I describe a number of these important proposals below. See infra Section III.B. My point is only that our attention to “children’s rights” should not drown out equally important calls for securing important benefits and protections through the ordinary democratic process.

262 551 U.S. 393, 396–98 (2007). 263 See id. at 410, 425, 435. Five Justices agreed that the school did not violate the student’s First Amendment rights; three Justices reached the opposite conclusion. Justice Breyer wrote separately to say he would have ruled in the school’s favor on qualified immunity grounds without passing judgment on the constitutional question itself.

264 Erwin Chemerinsky, The Roberts Court at Age Three, 54 WAYNE L. REV. 947, 953–54 (2008). 265 Frederick Schauer, Is It Important to Be Important?: Evaluating the Supreme Court’s Case-

Selection Process, 119 YALE L.J. ONLINE 77, 82 (2010).

266 Id. 267 550 U.S. 516 (2007). 268 See Winkelman v. Parma City Sch. Dist., 411 F. Supp. 2d 722, 725–26 (N.D. Ohio 2005)

(describing the Winkelmans’ disagreements with their son’s IEP).

269 Id.; Winkelman, 550 U.S. at 520–21, 526 (citing 20 U.S.C. § 1415(i)(2 . 270 Winkelman, 550 U.S. at 521–22. 271 Id. at 533, 535. 272 Brief of Amici Curiae Council of Parent Attorneys & Advocates Inc. et al. at 10, Winkelman,

550 U.S. 516 (No. 05-983), 2006 WL 3740368 (citing Schaffer v. Weast, 546 U.S. 49, 52 (2005 .

273 Id. at 11. 274 Id. at 9 n.3.

275 Id. 276 Eloise Pasachoff, Special Education, Poverty, and the Limits of Private Enforcement, 86 NOTRE

DAME L. REV. 1413, 1416, 1432 (2011).

277 See, e.g., Laura McNeal, Access Granted: The Winkelman Case Ushers In a New Era in Parental Advocacy, 2010 BYU EDUC. & L.J. 129, 131 (“[T]he Winkelman decision will help transform IDEA into a more robust education reform through increased teacher and school leader accountability for the quality of education provided to children with disabilities.”).

278 See supra Table 8 (finding that nonconstitutional rights claims result in children’s victories in

61.7% of cases, compared to 64.2% of constitutional rights cases).

279 Minow, supra note 20, at 297–98. 280 Dowd, supra note 31, at 1371.

281 See id. at 1425 (introducing certain “threads that support a doctrine of children’s rights” in

“[e]xisting constitutional doctrine”).

282 See id. at 1438 (arguing that “[t]he most challenging constitutional interpretation to children’s

equality rights” is DeShaney’s holding that “the Constitution only recognizes negative rights”).

283 Id. at 1440; see also NANCY E. DOWD, REIMAGINING EQUALITY: A NEW DEAL FOR CHILDREN

OF COLOR 136 (2018) (advocating for a legislative “New Deal for Children”).

284 Dowd, supra note 31, at 1377. 285 Id.; see also Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330, 340, 400 (discussing “legislative constitutionalism,” or a legislative duty to satisfy constitutional standards).

286 ROBERTS, supra note 27, at 257. 287 Id. at 268. 288 Id.

289 Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First

Century, 118 MICH. L. REV. 1371, 1412 (2020).

290 Dailey, supra note 55, at 2177. 291 Guggenheim, supra note 12, at 958. 292 BARBARA BENNETT WOODHOUSE, HIDDEN IN PLAIN SIGHT: THE TRAGEDY OF CHILDREN’S

RIGHTS FROM BEN FRANKLIN TO LIONEL TATE 313 (2008).

293 Id.; see also id. at 33 (describing how the United Nations Convention on the Rights of the Child’s (CRC’s) “provisions would only become enforceable in American courts as laws were enacted at the federal, state, or local level”).

294 Hilary W. Hoynes & Diane Whitmore Schanzenbach, Safety Net Investments in Children 3 (Nat’l Bureau of Econ. Rsch., Working Paper No. 24594, 2018), https://www.nber.org/papers/w24594 [https://perma.cc/EF7X-8MBS].

295 Id. at 3–4 (discussing increased reliance on the Earned Income Tax Credit, which ties subsidies

to work, rather than direct cash assistance).

296 See, e.g., Jonathan Weisman, Congress Ends ‘Horrible Year’ with Divisions as Bitter as Ever, N.Y. TIMES (Dec. 18, 2021), https://www.nytimes.com/2021/12/18/us/politics/congress-gridlockdemocracy.html [https://perma.cc/8MVF-RX2R].

297 See, e.g., supra note 249 (noting similar concerns with the political climate).

298 Annie Karni & Emily Cochrane, Senate Breaks Decades-Long Impasse on Gun Safety, N.Y. TIMES (June 23, 2022), https://www.nytimes.com/live/2022/06/23/us/gun-control-senate-supreme-court [https://perma.cc/P8SZ-QWZM].

299 Cory Turner, The Expanded Child Tax Credit Briefly Slashed Child Poverty. Here’s What Else It Did, NPR (Jan. 27, 2022), https://www.npr.org/2022/01/27/1075299510/the-expanded-child-tax-creditbriefly-slashed-child-poverty-heres-what-else-it-d [https://perma.cc/2EK3-QBM5].

300 Id. 301 See Zachary Parolin, Sophie Collyer & Megan A. Curran, COLUM. UNIV. CTR. ON POVERTY & SOC. POL’Y, Monthly Poverty in 2022 Remains Elevated in February, POVERTY & SOC. POL’Y BRIEF, Mar. 23, 2022, at 1–2, https://static1.squarespace.com/static/610831a16c95260dbd68934a/ t/623b3453e0ed764d39b715b4/1648047188230/Monthly-poverty-February-2022-CPSP.pdf [https://perma.cc/EXD5-7Q46].

302 See School Shootings in 2022: How Many and Where, EDUC. WEEK (Jan. 27, 2023)

https://www.edweek.org/leadership/school-shootings-this-year-how-many-and-where/2022/01 [https://perma.cc/U378-B635] (identifying 154 school shootings since 2018).

303 See Chris Murphy (@ChrisMurphyCT), X (June 12, 2022, 8:52 AM), https://twitter.com/

ChrisMurphyCT/status/1536013602846560256 [https://perma.cc/LY5Y-AKUC].

304 See Paul Waldman & Greg Sargent, Mitt Romney’s Challenge to Joe Manchin – and to Fellow

Republicans, WASH. POST (June 15, 2022) (describing the Republican child tax credit proposal).

305 Robert Orr & Joshua McCabe, Analysis of the Family Security Act 2.0, NISKANEN CTR. (June 15, 2022), https://www.niskanencenter.org/analysis-of-the-family-security-act-2-0/ [https://perma.cc/X256NDHY].

306 As of January 2022, 86% of survey respondents expressed the view that the Court was either “conservative” or “middle of the road.” Carrie Blazina & John Gramlich, 5 Facts About the Supreme Court, PEW RSCH. CTR. (Feb. 25, 2022), https://www.pewresearch.org/fact-tank/2022/02/25/5-factsabout-the-supreme-court/ [https://perma.cc/3X9Z-PX78].

307 See U.S. CENSUS BUREAU, HISTORICAL POVERTY TABLES: PEOPLE AND FAMILIES – 1959 TO 2021, tbl.3, https://www2.census.gov/programs-surveys/cps/tables/time-series/historical-poverty-people/ hstpov3.xlsx [https://perma.cc/N5DW-8V8H].

308 Id. The Census Bureau began calculating a supplemental poverty measure in 2011, which adjusts the official poverty measure by taking into account noncash government benefits. See KATHLEEN SHORT, U.S. CENSUS BUREAU, THE RESEARCH SUPPLEMENTAL POVERTY MEASURE: 2011, at 14 (2012). The new measure shows lower rates of child poverty. Unfortunately, a direct comparison to earlier periods is not possible given the Supplemental Poverty Measure’s recency. See id. at 1.

309 See Erik A. Hanushek, Paul E. Peterson, Laura M. Talpy & Ludger Woessman, The Achievement Gap Fails to Close, EDUC. NEXT (Summer 2019), at 15 fig.2, http://hanushek.stanford.edu/sites/ default/files/publications/Hanushek%2BPeterson%2BTalpey%2BWoessmann%202019%20EdNext%2 019%283%29_0.pdf [https://perma.cc/6GYW-R6BP] (showing a 0.8 standard deviation gap in the Black–white achievement gap since 1980); see also id. at 10 (noting that “1 standard deviation is approximately the difference in the average performance of students in the fourth and eighth grades, or four years’ worth of learning”).

310 Id. at 13 fig.1. 311 To be sure, child mortality rates have declined worldwide since 1961 due to medical and public health advances. But the failure of U.S. child health policy is visible in a simple metric: Our inability to improve health outcomes for children at a rate on par with other developed nations. Thus, one recent article concluded that child “mortality in the US has been higher than in peer nations since the 1980s,” with the “risk of death in the US . . . 76 percent greater for infants and 57 percent greater for children ages 1–19.” Ashish P. Thakrar, Alexandra D. Forrest, Mitchell G. Maltenfort & Christopher B. Forrest, Child Mortality in the US and 19 OECD Comparator Nations: A 50-year Time-Trend Analysis, 37 HEALTH AFFS. 140, 140 (Jan. 2018), https://www.healthaffairs.org/doi/10.1377/hlthaff.2017.0767 [https://perma.cc/MK37-RUAJ].

312 See supra note 11. 313 See supra notes 90, 100, 125–129.

314 See supra notes 307–311. 315 See, e.g., Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 CALIF. L. REV. 1703, 1706 (2021) (assessing progressive options for responding to the conservative Supreme Court).

316 GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE?,

xiii (2008).

317 Id. at 35. 318 Id. at 6. 319 Samuel Krislov, The Hollow Hope: Can Courts Bring About Social Change?, 9 CONST. COMM. 339, 368–70 (1992) (reviewing ROSENBERG, supra note 316); see also Peter H. Schuck, Public Law Litigation and Social Reform, 102 YALE L.J. 1763, 1771–72 (1993) (critiquing Rosenberg’s argument).

CONCLUSION

320 Among other data points, consider that juvenile arrests have fallen dramatically from roughly two million per year in 1980 to 728,280 in 2018. Charles Puzzanchera, DOJ, Juvenile Arrests, 2018, NAT’L REP. SERIES BULL., June 2020, at 1, https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/media/ document/254499.pdf [https://perma.cc/W6VP-W48N]; see also Laura Cohen, Freedom’s Road: Youth, Parole, and the Promise of Miller v. Alabama and Graham v. Florida, 35 CARDOZO L. REV. 1031, 1033 (2014) (describing the Court’s “new, more humane jurisprudence of youth”). But see, e.g., Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 WASH. U. L. REV. 919, 923–24 (2016) (noting the problem of increased police presence on school campuses and an accompanying disparate impact on arrest rates for students of color).

321 See, e.g., Doerfler & Moyn, supra note 315, at 1743 (challenging progressives to reconsider “whether the Supreme Court’s unimpressive baseline protection of the rights of vulnerable minorities . . . suffices to justify its empowerment as guardian of basic entitlements”).

322 See, e.g., Obergefell v. Hodges, 576 U.S. 644, 681 (2015) (recognizing constitutional right to same-sex marriage); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (declaring unconstitutional racial segregation in public schools).

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