1925-1999
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.
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
- Time Period CoveredThis 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.
- Choosing the CasesThe cases chosen were where the ACLU was shown by US Supreme Court documents or records to be:
- a party, or
- the attorney of record, or
- 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.
- Win/Loss Definition
- 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.
- 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.
- 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.
- 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
5. Voting Record of the ACLU in the US Supreme Court by Decade
DECADE | WINS | TIES | LOSSES | RECAP | |||||||||||
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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 | ![]() |
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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 | ![]() |
2 | 2 | 13 | 12 | 24 | 18 | |
8th Amendment | 2 | ![]() |
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1 | ![]() |
1 | ||
Death Penalty | 17 | ![]() |
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1 | 5 | 3 | 8 | |
Drugs | 44 | ![]() |
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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 | ![]() |
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1 | 18 | 12 | 9 | |
Federal | 33 | ![]() |
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1 | 19 | 13 | |
State | 44 | ![]() |
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2 | 5 | 18 | 14 | 5 | |
Voting Rights | 16 | ![]() |
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1 | 4 | 3 | 8 | |
Privacy | 14 | ![]() |
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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 | ![]() |
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4 | 6 | 5 | 6 | 3 | |
Communism | 31 | ![]() |
1 | 17 | 13 | ![]() |
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|
Census | 2 | ![]() |
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2 | |
Federalism | 6 | ![]() |
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1 | 3 | ![]() |
2 | |
Civil Procedures | 6 | ![]() |
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1 | 2 | 3 | |
Regulation | 33 | ![]() |
5 | 1 | 4 | 6 | 15 | 2 | |
Immunity | 5 | ![]() |
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2 | 2 | 1 | |
Military | 6 | ![]() |
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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 | ![]() |
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Wins | Losses | |
Obscenity | ![]() |
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1 | ![]() |
2 | 2 | 6 | 2 | 1 | 8 | 3 | 5 | ![]() |
2 | 32 | 40.63% | 13 | 19 | ||
Defamation | ![]() |
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1 | ![]() |
2 | ![]() |
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3 | 1 | ![]() |
1 | 8 | 75.00% | 6 | 2 | ||
Religion | ![]() |
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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 | ![]() |
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Wins | Losses | |
4th Amendment | ![]() |
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1 | ![]() |
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6 | 5 | 5 | 6 | 6 | 9 | 4 | 8 | 50 | 44.00% | 22 | 28 | ||
Criminal Procedure | ![]() |
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1 | 1 | 1 | ![]() |
9 | 4 | 5 | 8 | 10 | 14 | 7 | 10 | 72 | 47.22% | 34 | 38 | ||
8th Amendment | ![]() |
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1 | ![]() |
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2 | 1 | ![]() |
4 | 25.00% | 1 | 3 | |||
Death Penalty | ![]() |
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1 | ![]() |
4 | 1 | ![]() |
3 | 4 | 4 | 17 | 52.94% | 9 | 8 | ||
Drugs | ![]() |
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1 | ![]() |
3 | 1 | 3 | 6 | 4 | 11 | 5 | 10 | 44 | 36.36% | 16 | 28 | ||
Prison | ![]() |
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2 | ![]() |
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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 | ![]() |
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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 | ![]() |
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Wins | Losses | |
Race | ![]() |
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10 | 3 | 3 | 1 | 7 | ![]() |
4 | 7 | 13 | 10 | 5 | 3 | 66 | 63.63% | 42 | 24 | ||
Gender | ![]() |
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1 | 14 | 4 | 7 | 5 | 7 | 2 | 40 | 70.00% | 28 | 12 | ||
Federal | ![]() |
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1 | 9 | 10 | 7 | 6 | 33 | 48.48% | 16 | 17 | ||
State | ![]() |
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1 | 1 | 4 | ![]() |
14 | 4 | 7 | 7 | 4 | 1 | 44 | 68.18% | 30 | 14 | ||
Voting Rights | ![]() |
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1 | 1 | 3 | 2 | 1 | 5 | 3 | 16 | 50.00% | 8 | 8 | ||
Privacy | ![]() |
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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 | ![]() |
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Wins | Losses | |
Union | 1 | ![]() |
2 | 2 | ![]() |
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2 | 4 | 1 | 1 | 1 | 1 | ![]() |
15 | 60.00% | 9 | 6 | ||
Immigration/ Citizenship |
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1 | 3 | 4 | 2 | 2 | 3 | 3 | 3 | ![]() |
3 | 24 | 41.67% | 10 | 14 | ||
Communism | ![]() |
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1 | ![]() |
13 | 4 | 9 | 4 | ![]() |
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31 | 74.19% | 23 | 8 | ||
Census | ![]() |
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2 | 2 | 0.00% | 0 | 2 | ||
Federalism | ![]() |
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1 | ![]() |
1 | 2 | ![]() |
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1 | 1 | 6 | 50.00% | 3 | 3 | ||
Civil Procedures | ![]() |
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1 | ![]() |
1 | 2 | 1 | 6 | 50.00% | 3 | 3 | ||
Regulation | ![]() |
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2 | 3 | 1 | ![]() |
3 | 1 | 3 | 3 | 6 | 9 | 2 | 33 | 51.51% | 17 | 16 | |||
Immunity | ![]() |
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2 | 1 | 1 | ![]() |
5 | 20.00% | 1 | 4 | |||
Military |
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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 | ![]() |
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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% |