descriptive scholarly accounts of religious identity and judicial behavior?
doughr at udallas.edu
Thu Apr 22 08:00:40 PDT 2010
In regard to Stevens on religion, do you mean that his views on religion affect his decisions, or his religious beliefs? I think the former clearly do, but I'm not sure about the latter (in part, as I'm not sure what they are).Richard Dougherty
From: "Eric Segall" <esegall at gsu.edu>
Sent 4/22/2010 9:22:54 AM
To: Hamilton02 at aol.com, SLevinson at law.utexas.edu, conlawprof at lists.ucla.edu, crossf at mail.utexas.edu, Jeff.Renz at mso.umt.edu, kwalsh at richmond.edu
Subject: Re: descriptive scholarly accounts of religious identity and judicial behavior?I would be curious how you defined "religious belief." If it's just association with an organized church (or not), I'm not surprised. But if religious beliefs refers to values about faith and other spiritual matters, I would be shocked if the Justices' beliefs didn't affect their views on constitutional questions. Justice Steven's views on religion, for example pretty clearly inform his views on both the Establishment and Free Exercise Clauses.
But then again, I am (proudly) a "super hard core legal realist."
>>> Frank Cross <crossf at mail.utexas.edu> 04/22/10 10:14 AM >>>
I looked at this for circuit courts in Decision Making in the U.S.
Courts of Appeals. I found virtually no effect of religious belief
on judicial decisionmaking.
At 08:50 AM 4/22/2010, Walsh, Kevin wrote:
>The "super hardcore legal realist" perspective is a helpful one to
>introduce here inasmuch as it leads to the further question of what
>we know about the effect of religious beliefs/identity/background on
>judicial behavior. If one accepts that "the Justices' entire value
>system makeup is what decides cases," it certainly follows that "the
>Justices' religious beliefs are relevant," at least in a trivial
>sense. But what is the evidence that religious identity is a
>significant variable in explaining judicial behavior like vote outcomes?
>I have looked into this question a little bit recently, but have yet
>to come across any scholarly studies making an affirmative case for
>using religious identity to explain judicial behavior in any
>systematic way. Most of what I have seen has been normative rather
>One tantalizing tidbit on the descriptive front is the observation
>by Jeffrey Segal and Harold Spaeth in 2002 that "a focus on
>religious background is becoming increasingly fatuous." (The
>Supreme Court and the Attitudinal Model Revisited, 183 n.17. I
>should add that, in context, this footnote statement is something of
>an aside from the descriptive point that the authors were making at
>that point in the book. It nevertheless seems worth noting and
>looking into further.) I'd be grateful for any pointers to
>literature on this subject, on- or off-list.
>From: Eric Segall [mailto:esegall at gsu.edu]
>Sent: Thursday, April 22, 2010 8:21 AM
>To: Hamilton02 at aol.com; SLevinson at law.utexas.edu;
>conlawprof at lists.ucla.edu; Jeff.Renz at mso.umt.edu; Walsh, Kevin
>Subject: Re: Justice Stevens will not be easily replaced
>I apologize if this question has already been asked. Marci what did
>you mean by:
>"I suppose we will be able to divine
>"meaningful religious diversity" among the 6 Catholics if the Court
>take up a straightforward challenge to Roe v Wade."
>To a super hardcore legal realist like me, the Justices' entire
>value system makeup is what decides case (thus Kennedy is Catholic
>but has always been somewhat of a libertarian not to mention he may
>not have wanted to be the person known for overturning Roe, etc.).
>But I assume you are not a super hardcore legal realist and, because
>I am writing about this kind of issue in various places, I ask this
>question not to be provocative but sincerely wanting to know what
>you meant. Why would ones' religious beliefs be important to how a
>Justice interprets what the law is under the Fourteenth Amendment?
>And if the Justice's religious beliefs are relevant (which of course
>I think they are), why do we live in a country where neither the
>President nor any nominee could ever say that out loud.
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Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
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