Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions

38 Pages Posted: 25 Feb 2022 Last revised: 31 Oct 2022

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: 2022

Abstract

In our ongoing empirical examination of religious liberty decisions in the federal courts, extended now into a third decade, we find the persistence of ideological influence in Establishment Clause decisions for the period of 2006-2015. Because a non-partisan judiciary is essential to preserve the rule of law, we should sound the alarm when partisan influences appear to be weighting the outcome.

At the same time, one might take comfort in a systematic narrowing of the partisan gap in this most recent ten-year period for our study. For 1996-2005, we had found an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. By this 2006-2015 period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.

Moreover, a Supreme Court precedent variable was the single most significant, robust, and powerful influence on the outcome. Thus, our findings suggest that legal controls may meaningfully confine subjective discretion and reduce the influence of extra-legal factors in federal court decisionmaking.

Keywords: Federal courts, judges, Establishment Clause, First Amendment, freedom of religion, judicial decision-making, empirical legal studies, judges and ideology

Suggested Citation

Sisk, Gregory C. and Heise, Michael, Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions (2022). 54 Arizona State Law Journal 625 (2022), U of St. Thomas (Minnesota) Legal Studies Research Paper No. 22-09, Cornell Legal Studies Research Paper 22-25, Available at SSRN: https://ssrn.com/abstract=4043249

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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