Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts

64 Pages Posted: 21 Mar 2011 Last revised: 17 May 2012

See all articles by Gregory C. Sisk

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

Michael Heise

Cornell Law School

Date Written: 2012


In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.

Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establishment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.

A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.

Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.

Keywords: Religious liberty, Establishment Clause, Church and State, Judicial Decisionmaking, judges, courts, empirical study of courts

Suggested Citation

Sisk, Gregory C. and Heise, Michael, Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts (2012). 110 Michigan Law Review 1201 (2012), U of St. Thomas Legal Studies Research Paper No. 11-04, Cornell Legal Studies Research Paper, Available at SSRN:

Gregory C. Sisk (Contact Author)

University of St. Thomas School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

Michael Heise

Cornell Law School ( email )

308 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
607-255-0069 (Phone)
607-255-7193 (Fax)

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