Batting Average of the ACLU in the US Supreme Court
1925-1999


        1. Introduction
        2. Batting Average Recap
        3. Methodology
        4. 752 US Supreme Court Cases
  1. Voting Record of the ACLU in the Supreme Court by Decade
  2. Case Categories Defined
  3. Breakdown of Cases by Category and Decade
  4. Case Win/Loss Breakdown by Category and Decade
1. Introduction

The "Batting Average of the ACLU in the US Supreme Court" examines the ACLU's win/loss record in all 752 US Supreme Court cases in which it was involved in from 1925 to 1999. The cases are examined by decade, by subject matter, and by margin of victory/loss. To read the individual case summaries visit ACLU in the Supreme Court.

Personal statement from ProCon.org's Chairman Steven C. Markoff about the batting average project.

2. Batting Average Recap


Decade Ending December 31
Total Number of Cases Number of ACLU

        wins                  losses
Batting Average
(Win %)
1929 1 0 1 0.00%
1939 7 7 0 100.00%
1949 47 33 14 70.21%
1959 41 28 13 68.29%
1969 99 71 28 71.72%
1979 148 76 72 51.35%
1989 238 120 118 50.42%
1999 171 89 82 52.05%
1920-1999 752 424 328 56.38%

3. Methodology

  1. Time Period Covered

    This work was confined to cases decided by the US Supreme Court from the formation of the ACLU on Jan. 19, 1920 through Dec. 31, 1999.

  2. Choosing the Cases

    The cases chosen were where the ACLU was shown by US Supreme Court documents or records to be:
    1. a party, or
    2. the attorney of record, or
    3. the filer of an amicus brief

    This criteria excluded many cases where the ACLU was involved indirectly or informally, including notable ones, such as Roe v. Wade, Powell v. Alabama and Loving v. Virginia.

  3. Win/Loss Definition

    1. This work has simply defined "winning" or "losing" by whether or not the ruling of the US Supreme Court was "with" or "against" the side the ACLU was on, even though there are instances where the ACLU was on the "winning side" but felt they lost and, conversely, where they were on the "losing side" but may have received a benefit from the decision.

    2. It is established that in the cases of ties, where the US Supreme Court ruling has an equally divided 4-4 vote, the equally divided decision reaffirms the ruling below because petitioner/appellant needs 5 votes to overturn a judgment. In that case, we count the decision as an ACLU "win" or "loss" depending on whether the ACLU position was seeking affirmance or reversal of the judgment.

    3. When the US Supreme Court's ruling goes part in favor and part against the ACLU position, we count "winning" or "losing" according to whether the Court's line of reasoning in its argument was "with" or "against" the ACLU position.

    4. In per curiam decisions, the US Supreme Court often issued decisions without making public the individual Justices' voting record. In some such cases, we have categorized these decisions as unanimous "wins" or "losses" - unless an individual Justice had issued an opinion indicating their own position and adjusted the unanimous vote accordingly (i.e., if it is a concurring opinion, the vote remains unanimous; however, in the case of dissenting opinions, the unanimity of the vote fails).

4. 752 US Supreme Court Cases

Click here to view our presentation of the 752 Supreme Court cases.

5. Voting Record of the ACLU in the US Supreme Court by Decade

DECADE WINS TIES LOSSES RECAP
5-4 6-3
5-3
4-3
7-2
6-2
5-2
8-1
7-1
6-1
9-0
8-0
7-0
6-0
Total
Wins
4-4
3-3
Total
Losses
0-9
0-8
0-7
1-8
1-7
1-6
2-7
2-6
2-5
2-4
3-6
3-5
3-4
4-5 Total
Cases
ACLU
Win%
1920s 0 0 0 0 0 0 0 1 0 0 1 0 0 1 0.00%
1930s 1 0 3 1 2 7 0 0 0 0 0 0 0 7 100.00%
1940s 6 6 5 4 12 33 0 14 6 3 0 3 2 47 70.47%
1950s 3 5 3 5 12 28 1 13 1 1 1 4 5 41 68.29%
1960s 14 12 9 14 22 71 0 28 2 3 3 8 12 99 71.72%
1970s 15 10 18 12 21 76 1 72 7 8 12 27 17 148 51.35%
1980s 24 19 11 13 52 120 1 118 22 8 11 36 41 238 50.42%
1990s 18 11 10 5 45 89 0 82 21 8 14 17 22 171 52.05%
Totals/
Average
81 63 59 54 166 424 3 328 59 31 42 95 99 752 56.38%
Percent 10.77% 8.38% 7.85% 7.18% 22.07% 56.38% 0.40% 43.61% 7.85% 4.12% 5.59% 12.63% 13.16% 100.00%

6. Case Categories Defined

The 752 cases included in the project have been divided into four main categories: 1st Amendment, Criminal Justice, Civil Rights, and Governmental Authority. These categories are subdivided as follows:

1st Amendment (197 cases)

  • Obscenity: Cases dealing with the limits of the freedom of "obscene" and offensive speech

  • Defamation: Cases involving libelous publication and slanderous utterances against individuals

  • Religion: Cases involving the free exercise of religion and the prohibition of the establishment of an official government religion

  • Press, Speech, Association: Cases involving, freedom of speech, the press, and the freedom of association

Criminal Justice (214 cases)
  • 4th Amendment: Cases involving the protection against and the limits of unwarranted search and seizure

  • Criminal Procedure: Cases involving the 5th and 6th Amendment, as well as criminal trial procedures

  • 8th Amendment: Cases involving the prohibition against cruel and unusual punishment

  • Death Penalty: Cases involving appeals and commuting of sentencing

  • Drugs: Cases dealing with narcotics as the issue or cause of arrest

  • Prison: Cases involving inmate rights, prison conditions, and the parole process

Civil Rights (213 cases)
  • Race: Cases dealing with both state and federal racial discrimination

  • Gender: Cases dealing with both state and federal gender discrimination

  • Federal: Cases involving civil rights protected by federal law

  • State: Cases dealing with civil rights protected by state statues or state rights and the 14th Amendment

  • Voting Rights: Cases dealing with the right to vote, right against vote dilution, and redistricting issues

  • Privacy: Cases mainly involving reproductive rights (abortion, contraception) and the individual's right to privacy

Governmental Authority (128)
  • Union: Cuts across categories, but generally cases dealing with government regulation of labor unions

  • Immigration/Citizenship: Cases dealing with people immigrating to the United States, and United States citizens living abroad

  • Communism: Cuts across categories, but generally cases dealing with government statutes and acts, and agencies created to deal with communism

  • Census: Cases involving the census count

  • Federalism: Cases dealing with controversy between branches of the federal government

  • Civil Procedures: Cases involving issues with civil trial procedures

  • Regulation: Cases dealing with government regulatory agencies

  • Immunity: Cases dealing with immunity from lawsuits and the 11th Amendment

  • Military: Cases involving military personnel or cases under military jurisdiction

7. Breakdown of Cases by Category and Decade

1st Amendment 1920s
1930s 1940s 1950s 1960s 1970s 1980s 1990s
Obscenity 32
1 4 8 9 8 2
Defamation 8
1 2 4 1
Religion 39
6 1 6 5 14 7
Press, Speech, Association 118 1
5 12 4 10 10 41 35
Total: 197

Criminal Justice 1920s
1930s 1940s 1950s 1960s 1970s 1980s 1990s
4th Amendment 52
1 11 11 17 12
Criminal Procedure 72
1 2 2 13 12 24 18
8th Amendment 2
1   1
Death Penalty 17
1 5 3 8
Drugs 44
1 4 9 15 15
Prison 27
2 1 7 6 11
Total: 214

Civil Rights 1920s
1930s 1940s 1950s 1960s 1970s 1980s 1990s
Race 66
13 4 7 11 23 8
Gender 40
1 18 12 9
Federal 33
1 19 13
State 44
2 5 18 14 5
Voting Rights 16
1 4 3 8
Privacy 14
2 3 6 3
Total: 213

Government Authority 1920s
1930s 1940s 1950s 1960s 1970s 1980s 1990s
Union 15
1 4 2 5 2 1
Immigration/Citizenship 24
4 6 5 6 3
Communism 31
1 17 13
Census 2
2
Federalism 6
1 3 2
Civil Procedures 6
1 2 3
Regulation 33
5 1 4 6 15 2
Immunity 5
2 2 1
Military 6
3 2 1
Total: 128

DECADE: 1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s
TOTALS: 752 1 7 47 41 99 148 238 171


8.Case Win (W) / Loss (L) Breakdown by Category and Decade

1st Amendment
1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s TOTAL
CASES
WIN
%
TOTAL

W L W L W L W L W L W L W L W L Wins Losses
Obscenity
1 2 2 6 2 1 8 3 5 2 32 40.63% 13 19
Defamation
1 2 3 1 1 8 75.00% 6 2
Religion
4 2 1 4 2 2 3 11 3 4 3 39 64.10% 25 14
Press, Speech,
Association

1 5 10 2 4 10   8 2 25 16 24 11 118 73.00% 86 32
TOTAL W/L:
1 5 0 15 4 7 3 22 4 11 13 42 25 28 17 197 66.00% 130 67
CATEGORY TOTAL: 1 5 19 10 26 24 67 45
WIN %: 0.00% 100.00% 70.00% 66.67% 70.00% 42.86% 64.18% 61.70%

Criminal Justice
1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s TOTAL
CASES
WIN
%
TOTAL

W L W L W L W L W L W L W L W L Wins Losses
4th Amendment
1 6 5 5 6 6 9 4 8 50 44.00% 22 28
Criminal Procedure
1 1 1 1 1 9 4 5 8 10 14 7 10 72 47.22% 34 38
8th Amendment
1   2 1 4 25.00% 1 3
Death Penalty
1 4 1 3 4 4 17 52.94% 9 8
Drugs
1 3 1 3 6 4 11 5 10 44 36.36% 16 28
Prison
2 1 4 3 4 2 5 6 27 51.85% 14 13
TOTAL W/L:
1 0 4 1 2 1 20 11 21 24 24 41 26 38 214 44.65% 96 118
CATEGORY TOTAL: 0 1 5 3 31 45 65 64
WIN %: 0.00% 100.00% 80.00% 66.67% 64.52% 46.67% 36.92% 41.00%

Civil Rights
1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s TOTAL
CASES
WIN
%
TOTAL

W L W L W L W L W L W L W L W L Wins Losses
Race
10 3 3 1 7 4 7 13 10 5 3 66 63.63% 42 24
Gender
1 14 4 7 5 7 2 40 70.00% 28 12
Federal
1 9 10 7 6 33 48.48% 16 17
State
1 1 4 1 14 4 7 7 4 1 44 68.18% 30 14
Voting Rights
1 1 3 2 1 5 3 16 50.00% 8 8
Privacy
1 1 2 1 4 2 1 2 14 57.14% 8 6
TOTAL W/L:

 

    10 3 4 2 12 4 35 20 42 35 29 17 213 61.97% 132 81
CATEGORY TOTAL:

0

0 13 6 16 55 77 46
WIN %: 0.00% 0.00% 76.92% 66.67% 75.00% 62.96% 54.54% 62.22%

Governmental Authority
1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s TOTAL
CASES
WIN
%
TOTAL

W L W L W L W L W L W L W L W L Wins Losses
Union
1 2 2 2 4 1 1 1 1 15 60.00% 9 6
Immigrations/
Citizenship

1 3 4 2 2 3 3 3 3 24 41.67% 10 14
Communism
1 13 4 9 4 31 74.19% 23 8
Census
2 2 0.00% 0 2
Federalism
1 1 2 1 1 6 50.00% 3 3
Civil Procedures
1 1 1 2 1 6 50.00% 3 3
Regulation
2 3 1 3 1 3 3 6 9 2   33 51.51% 17 16
Immunity
2 1 1   1 5 20.00% 1 4
Military

3 2 1 6 0.00% 0 6
TOTAL W/L:
1 0 5 5 15 7 17 9 10 15 12 17 6 9 128 51.56% 66 62
CATEGORY TOTAL:
1 10 22 26 25 29 15
WIN %:
100.00% 50.00% 68.18% 65.38% 40.00% 41.38% 40.00%

TOTALS
1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s TOTAL
WINS
TOTAL
LOSSES
W L W L W L W L W L W L W L W L
TOTAL W/L: 0 1 7 0 33 14 28 13 71 28 76 72 120 118 89 82 424 328
CATEGORY TOTAL: 1 7 47 41 99 148 238 171 752
WIN %: 0.00% 100.00% 70.21% 68.29% 71.72% 51.35% 50.42% 52.05% 56.38%