Quite right! Indeed, in an academic environment in which empirical researchers on the judiciary are sometimes too quick to assume that it's all politics or all personal background, Michael Heise and I (and several others, notably including Frank Cross) have worked to put this all in context, address the limitations on quantitative measures especially of ideology, and to emphasize the importance as well of traditional legal factors in judicial making: See Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic Debates About Statistical Measures<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=722581> (with Michael Heise), 99 Nw. U. L. Rev. 743 (2005). One need not adopt what Frank Cross and Blake Nelson rightly describe as the "naïve legal model," that judging is nothing but formal legal reasoning, to insist that law, legal text, precedent, etc. do matter and matter very much.
Greg Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 From: Stephen M. Feldman [mailto:sfeld...@uwyo.edu] Sent: Friday, July 11, 2014 5:48 PM To: Eric J Segall; Sisk, Gregory C.; 'Law & Religion issues for Law Academics' Cc: 'conlawp...@lists.ucla.edu' Subject: RE: Is Discussion of Justices' Religion "Off Limits"? I agree with Eric, which is why I suggested that we should think of politics broadly, as encompassing religion and culture. From my perspective, constitutional scholars too infrequently examine the law-politics dynamic that is integral to Supreme Court decision making. It is easier to focus solely on law or solely on politics, but neither law nor politics alone determines the justices' votes and decisions. It is worth mentioning, though, that quantitative studies, such as those by Greg Sisk and his collaborators, necessarily focus on a limited number of variables. Thus, if one of Greg's articles focuses on, let's say, the religion of the claimants, I don't think he intends to suggest that the claimants' religion is the only relevant factor. Rather, quantitative studies can examine only a certain number of measurable variables at any one time. And I don't intend to speak for Greg, so I apologize if it sounds that way. Step * * * * Stephen M. Feldman Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science University of Wyoming 307-766-4250 fax: 307-766-6417 sfeld...@uwyo.edu<mailto:sfeld...@uwyo.edu> Author of Neoconservative Politics and the Supreme Court: Law, Power, and Democracy<http://www.amazon.com/Neoconservative-Politics-Supreme-Court-Democracy/dp/0814764665/ref=tmm_hrd_title_0?ie=UTF8&qid=1354160584&sr=1-1> and Free Expression and Democracy in America: A History<http://www.amazon.com/Free-Expression-Democracy-America-History/dp/0226240665/ref=sr_1_1?s=books&ie=UTF8&qid=1362524802&sr=1-1&keywords=feldman+free+expression> From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Friday, July 11, 2014 4:31 PM To: Sisk, Gregory C.; 'Law & Religion issues for Law Academics' Cc: 'conlawp...@lists.ucla.edu' Subject: RE: Is Discussion of Justices' Religion "Off Limits"? I think this discussion misses the real "Elephant" in the room. I don't think anyone thoughtful believes any one non-legal background factor fully explains any one decision. The question I think is whether text, tradition, precedent, structure, and history do significant work at SCOTUS or whether other non-legal factors play a much larger role, and if they do, why don't we require the Justices to try and identify those other factors when explaining the purported reasons for their decisions. I would hate to see a discussion of the Court's legitimacy turn on the religion issue. Greece and Hobby Lobby, I think, were generated by far more complicated personal factors, but the choices the Justices made, were, in my opinion, nevertheless, personal. Best, Eric [X] From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> <conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>> on behalf of Sisk, Gregory C. <gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> Sent: Friday, July 11, 2014 6:08 PM To: 'Law & Religion issues for Law Academics' Cc: 'conlawp...@lists.ucla.edu' Subject: RE: Is Discussion of Justices' Religion "Off Limits"? Thanking Step Feldman for his mention, the empirical studies that Michael Heise, Andrew Morriss, and I have conducted on religious liberty decisions in the federal courts did indeed find that religion was an important factor on Free Exercise decisions - but it tended to the religion of the claimant that mattered the most. For the 1986-1995 period, we found that traditionalist Christians - Catholics, evangelical Baptists, etc. - were significantly more likely to lose in seeking accommodation for religious exercise under the First Amendment or religious liberty statutes. Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=486148>, 65 Ohio St. L.J. 491 (2004). By the 1996-2005 period, that traditionalist Christian deficit had disappeared. Michael Heise & Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence From the Federal Courts<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025149>, 88 Notre Dame L. Rev. 1371 (2013); Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence From the Federal Courts<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057>, 98 Ia. L. Rev. 231 (2012). One possible reason for that change, we hypothesized, was that a large number of the claims presented by traditionalist Christians were for exemption from anti-discrimination statutes, such as employment cases involving teachers in religious institutions, a position that had largely prevailed in the lower federal courts by the middle of the last decade, even before the Supreme Court's decision in Hosanna Tabor. However, for the 1996-2005 period, we found that Muslim Americans had only about half the chance to succeed in religious accommodation cases as did claimants from other religious communities. In the "Muslims and Religious Liberty" article, we discussed possible explanation for this Muslim claimant deficit. As for judges, we found some evidence that Jewish and non-mainstream Christian judges were attracted to religious accommodation claims during the 1986-1995 period. But we did not replicate that for Free Exercise cases in the 1996-2005 period, although we found that Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. In sum, our results paint a complex and nuanced picture of how extra-judicial factors inform Free Exercise litigation outcomes as well as judicial decisionmaking more generally. Perhaps more pertinent to the current thread, in a related study, we did find a powerful correlation between the political party of the judge and the outcome in Establishment Clause cases - even controlling for the judge's own religious background (but not finding religious affiliation of judges to be a significant influence in either direction). Gregory C. Sisk & Michael Heise, Ideology "All the Way Down"? An Empirical Study of Establishment Clause Decisions in the Federal Courts<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1791214>, 110 Mich. L. Rev. 1201 (2012). And here, rather than focusing on the judge's own background directly, we suggested that the impact of political party may well be attributable to the increasing divide between the political parties on matters of religion and thus on those who make judicial appointments. As we said in the abstract for that article: 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. Michael Heise and I are planning to follow the study forward into the next ten-year period, 2006-2015, and expect to begin collecting data in the next 12 to 18 months. Greg Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545
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