descriptive scholarly accounts of religious identityandjudicial behavior?

Thu Apr 22 08:51:23 PDT 2010

I agree the Court needs other political institutions to enforce its decisions but that has little to do with my overall belief that the Court does not act like a court. If the Court is concerned that its decision won't be enforced (Marbury, Hans, maybe the Viet Nam cases they never heard), they may not decide the case one way or another but that has nothing to do with acting like a court or making decisions based on text, history, etc.

Best,

Eric

>>> Miguel Schor <mschor at suffolk.edu> 4/22/2010 11:08 AM >>>
The latter is contestable once you place the Court in its political environment.  Presidents, Congress, and citizens may and do challenge the Court on a regular basis.  The Court relies on the other branches to effectuate its decisions.  The Supreme Court is obviously not electorally accountable but it is answerable for the qualities of its decisions to a larger community (as the posts on this list serv make abundantly clear) and that collective judgment plays a role in whether judicial decisions become sustainable precedent over time.  If the decision making of the Court is as malleable as you posit, then strategic concerns should matter as well, no?   Miguel

On Apr 22, 2010, at 10:53 AM, Eric Segall wrote:

> I should be clear that my statements  and my hard core realism are intended to apply only to the Supreme Court, where precedent is barely relevant (I know that's contestable), and no other court is looking over its shoulders (not contestable).
> 
> Eric
> 
>>>> "Sisk, Gregory C." <GCSISK at stthomas.edu> 04/22/10 10:51 AM >>>
> I am strongly of the belief, based on the empirical evidence as I see it (much of which is found in Frank Cross's valuable book, Decision Making in the U.S. Court of Appeals), that background, ideology, and other non-legal factors are less influential on decision-making, at least in the lower federal courts, than is often portrayed in the social science literature.  See, e.g., Judges and Ideology:  Public and Academic Debates About Statistical Measures (with Michael Heise), 99 Northwestern University Law Review 743 (2005).  At the same time, non-legal factors plainly do have an effect and that effect is more pronounced in certain circumstances which are more likely to tease it out.
> 
> Thus, in my studies with Michael Heise and Andy Morriss (one of which is ongoing this summer) on religious liberty decisions in the lower federal courts, religious background of judges and of claimants proved to be the most robust and salient of correlations with outcomes.  See Searching for the Soul of Judicial Decisionmaking:  An Empirical Study of Religious Freedom Decisions,  65 Ohio State Law Journal 491 (2004); How Traditional and Minority Religions Fare in the Courts:  Empirical Evidence from Religious Liberty Cases, 76 University of Colorado Law Review 1021 (2005).  I emphasize, however, that one cannot and should not readily extrapolate these particular findings to either federal cases generally that is, (beyond religious liberty decisions) or to the Supreme Court.
> 
> 
> Gregory Sisk
> Orestes A. Brownson Professor of Law
> University of St. Thomas School of Law (Minnesota)
> MSL 400, 1000 LaSalle Avenue
> Minneapolis, MN  55403-2005
> 651-962-4923
> gcsisk at stthomas.edu 
> http://personal2.stthomas.edu/GCSISK/sisk.html 
> Publications:  http://ssrn.com/author=44545 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Walsh, Kevin
> Sent: Thursday, April 22, 2010 8:50 AM
> To: Eric Segall; Hamilton02 at aol.com; SLevinson at law.utexas.edu; conlawprof at lists.ucla.edu; Jeff.Renz at mso.umt.edu 
> Subject: descriptive scholarly accounts of religious identity and judicial behavior?
> 
> 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 than descriptive.  
> 
> 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.  
> 
> Kevin
> 
> -----Original Message-----
> 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 ever  does 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.
> 
> Thanks,
> 
> Eric
> 
> 
> 
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