An invitation to the dance: an empirical response to Chief Justice Warren Burger's "time-consuming procedural minuets" theory in Parham v. J.R.

The legal system prides itself on rigorous issues analysis, logical thought processes and comprehensive use of factual data in cases involving the social sciences. Since the famed" Brandeis brief' was filed with the United States Supreme Court in Lochner v. New York' some 50 years ago, the employment of social science data in public policy cases has been a benchmark of the appellate court process. In cases as disparate as Brown v. Board of Education, ~ Baker v. Carr:! and Regents of University of California v. Bakke,-t factual and scientific data has been molded by the US Supreme Court to shape and buttress opinions involving virtually every controversial facet of American life. Seemingly-unresolvable issues of race, religion and politics have been decided through the use of such data. To what extent, however, has this model been carried overto the field of mental health law on the Supreme Court level? While State and lower Federal courts have regularly used statistical data in mental disability litigation in such areas as predictivity of dangerousness,;; right to treatment6 and the right to refuse treatment,1 to what extent has this trend been followed by the US Supreme Court? Perhaps not surprisingly, a review of the literature fails to reveal a single article on this topic: after all, the Supreme Court has decided more mental health constitutional law cases in the past 15 months (three) than it had in the prior 193 years (two). In spite of this (or, perhaps, because of it) it is still an issue worthy of some consideration. Specifically, how did the Supreme Court choose to deal with empirical data in the cases of Parham v. J .R. R and Secretary of Public Welfare v. Institutionalized Juveniles fl (hereinafter sometimes jointly referred to as Parham) on the question of the extent to which due process protections apply to the' 'voluntary" commitment of juveniles to psychiatric institutions? Unlike Addington v. Texas lO and Vitek v. Jones"-the court's other two recent forays into mental health law-Parham and Institutionalized Juveniles were class actions with extensive factual records developed below after lengthy, adversarial trials: both had been argued and reargued before