Ideology "all the way down"? An empirical study of establishment clause decisions in the federal courts

Michigan Law Review

Volumn 110, Issue 7, 2012, Pages 1201-1264

  Sisk, Gregory C ^a   Heise, Michael ^b  

^a UNIVERSITY OF ST THOMAS   (United States)

^b MIT Sloan School of Management   (United States)

Author keywords

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EID: 85032101136     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (355)

1. The Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 103 (2010) [hereinafter Kagan Nomination Hearing] (statement of Sen. Jon Kyl, Member, S. Comm. on the Judiciary).
2. Id. (statement of Elena Kagan, Solicitor Gen. of the United States).
3. Eric J. Segall, Commentary, What Elena Kagan Could Have and Should Have Said (and Still Have Been Confirmed), 88 Wash. U.L. R e v. 535-538 (2010) (arguing that Justice Kagan should have said that "the 'law' often runs out in difficult constitutional cases," and therefore "a Justice has no choice but to bring her personal values, experiences, and judgments to the process")
4. Ann Althouse, The Kagan Hearings, Althouse (June 29, 2010, 7:58 AM), http://althouse.blogspot.com/2010/06/kagan-hearings.html ("Kagan [was] forthright: 'It's law all the way down.'... A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.").
5. Todd E. Pettys, Judicial Discretion in Constitutional Cases, 26 J.L. & Pol. 123-171 (2011) (arguing that even when the law leaves significant room for judges to reach conflicting conclusions in constitutional cases, judges are obliged to "shun[] reliance upon purely personal, non-legal reasons when making their discretionary judgments" and thus such "rulings are, in Justice Kagan's words, 'law all the way down'").
6. See Kagan Nomination Hearing, supra note 1, at 173 (statement of Elena Kagan, Solicitor Gen. of the United States) ("[S]o to say that something is law all the way down, which is absolutely the case, [is to say] that it would be completely improper for a judge to import personal, or moral, or political preferences into the occasion.");
7. Keith J. Bybee, Will the Real Elena Kagan Please Stand Up? Conflicting Public Images in the Supreme Court Confirmation Process, 1 Wake Forest J.L. & Pub. Pol'y 137-147 (2011)
8. "[Leading newspapers covering the nomination] clearly conveyed the impression that judicial decision making is a matter of impartial principle, and did so primarily by reporting the words of Kagan herself."
9. Craig S. Lerner & Nelson Lund, Judicial Duty and the Supreme Court's Cult of Celebrity, 78 Geo. Wash. L. Rev. 1255, 1255 (2010) ("Nominees of both parties now present themselves as modest and humble servants of the law, respectful of existing precedent and without a desire to move the law in any particular direction.").
10. Ronald Dworkin, The Temptation of Elena Kagan, N.Y. Rev. Books, Aug. 19, 2010, at 35-36 (arguing that it is "'law all the way down,'" but because some constitutional clauses are drafted in "abstract moral language," discovering and applying the law requires "a judge [to] rely on moral conviction");
11. Mark Tushnet, William Nelson Crowell Professor of Law, Harvard Law Sch., to conlawprof@lists.ucla.edu (June 29, 2010), http://www.mail-archive.com/conlawprof@lists.ucla.edu/msg20140.html ([O]f course judging is law all the way down.... Of course that doesn't mean that it's not, to take two possibilities, politics and empathy all the way down as well-which is why the answer, while accurate, isn't all that informative.").
12. Dworkin, supra note 5, at 35; see also Lerner & Lund, supra note 4, at 1256-57 ("In the legal academy, this traditional ideal [of judging] is considered laughable at best and pernicious at worst.").
13. Jonathan Alder, The Judiciary Committee Grills Elena Kagan, Response to Topic A, Wash. Post (June 29, 2010, 1:18 PM), http://www.washingtonpost.com/wp-dyn/content/article/2010/06/29/AR2010062902652.html ("[L]ike successful nominees before her, [Kagan] erred on the side of caution, not candor....")
14. Rick Esenberg, No Need to Pretend-She's a Liberal, Milwaukee Journal-Sentinel, July 3, 2010, http://www.jsonline.com/news/opinion/97700799.html (arguing that Justice Kagan's background and previous statements suggest that she accepts the liberal view that "judicial discretion is broad" and will "tend to use that discretion to privilege those values emphasized by contemporary progressives").
15. Michael Heise & Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts (2011) (working paper);
16. Michael Heise & Gregory C. Sisk, Religion, Schools, and Judicial Decisionmaking: An Empirical Perspective, U. Chi. L. Rev. (forthcoming 2012) [hereinafter Heise & Sisk, Religion, Schools, and Judicial Decisionmaking];
17. Gregory C. Sisk, How Traditional and Minority Religions Fare in the Courts: Empirical Evidence from Religious Liberty Cases, 76 U. Colo. L. Rev. 1021 (2005) [hereinafter Sisk, Traditional and Minority Religions in the Courts];
18. Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic Debates About Statistical Measures, 99 Nw. U. L. Rev. 743 (2005) [hereinafter Sisk & Heise, Judges and Ideology];
19. Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts (U. of St. Thomas Legal Studies, Research Paper No. 11-23, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057 [hereinafter Sisk & Heise, Muslims and Religious Liberty];
20. Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004).
21. See infra Section I.A.
22. See infra Sections I.B.1 and I.B.3.
23. 521 U.S. 203 (1997).
24. See infra Sections I.B.4 and II.B.3.
25. See infra Section II.A.1.
26. Robert George, God and Gettysburg, First Things, Aug./Sept. 2010, available at http://www.firstthings.com/article/2010/07/god-and-gettysburg.
27. Caroline Frederickson, Debate or Distraction: Why Some Are Fretting Over the ACS Pocket Constitution, Am. Constitution Soc'y for Law & Pol'y (July 20, 2010), http://www.acslaw.org/acsblog/debate-or-distraction-why-some-are-fretting-over-the-acs-pocket-constitution (rejecting "the claim that ACS deliberately manipulated the texts out of an alleged anti-God agenda of our organization" and observing that the first document included in the pamphlet, the Declaration of Independence, makes "very clear references to God and 'the Creator'").
28. Thomas C. Berg, Religious Liberty in America at the End of the Century, 16 J.L. & Religion 187, 231-32 (2001).
29. Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003), subsequent determination, 347 F.3d 916 (11th Cir. 2003).
30. Id. at 1284.
31. Id.
32. Robert K. Vischer, Professional Identity and the Contours of Prudence, 4 U. St. Thomas L.J. 46-51 (2006).
33. In re Moore, No. 33 (Ala. Ct. Jud. Nov. 13, 2003).
34. Noah Feldman, Divided by God: America's Church-State Problem- and What We Should Do About It 235 (2005) ("We are, increasingly, a nation divided by God. Although we all believe in religious liberty and almost no one wants an officially established religion, we cannot agree on what the relation between religion and government should be.").
35. Richard Rorty, Religion as Conversation-stopper, 3 Common Knowledge 1 (1994), reprinted in Philosophy and Social Hope 168, 169 (1999) (arguing that it should be seen as "bad taste to bring religion into discussions of public policy").
36. Andrea Stone, Congress Latest Battlefield in Annual "War on Christmas" Debate, AOL News (Dec. 16, 2010, 9:30 PM), http://www.aolnews.com/2010/12/16/congress-latest-battlefield-in-annual-war-on-christmas-debate (discussing assertions by Senate Republican leaders that plans for Congress to work through the holiday season were "sacrilegious" and "disrespect[ful of] one of the two holiest of holidays for Christians" (internal quotation marks omitted)).
37. Frank B. Cross, Decision Making in the U.S. Courts of Appeals 200 (2007) (referring to the "classic legal tug" on procedural issues that overrides ideological preferences).
38. See infra Part II.B.1.
39. Gregory Sisk & Michael Heise, Empirical Study of Religious Liberty Decisions Study Data, U. St. Thomas (last visited Jan. 20, 2012), http://courseweb.stthomas.edu/gcsisk/religion.study.data/cover.html.
40. In our prior study of 1986-1995 religious liberty decisions, we included only published decisions in our data set. Sisk, Traditional and Minority Religions in the Courts, supra note 8, at 1028, 1034. In so doing, we knowingly "biased our database in favor of decisions that raise highly visible, controversial, landmark, or difficult questions of religious freedom, or at least issues of religious freedom that a judicial actor found particularly interesting and thus worthy of publication." Id. at 1049. For this 1996-2005 study, we have expanded the data set to include the set of unpublished but digested opinions available on Westlaw. In addition to 535 judicial participations from published decisions, our data set includes twenty judge votes from decisions that were digested by Westlaw but not published in the reporter system. See Sisk & Heise, supra note 26.
41. Every decision was independently coded by both a trained law student and one of the authors. For more detailed information about our study, data collection, and coding, see the description published as part of our prior study of religious liberty decisions from 1986 to 1995, Sisk, Heise & Morriss, supra note 8, at 530-54, 571-612. The few changes in the selection of variables and coding from the prior study may be found by reviewing our coding and coding information. See supra note 26.
42. For further discussion of judicial participations as the data point, see Sisk, Heise & Morriss, supra note 8, at 539-41.
43. We did, however, control for the Party of Appointing President of the other judges on a three-judge appellate panel in alternative regression runs, thus conducting a limited exploration of panel effects. See infra Section I.B.2.
44. Christina L. Boyd & David A. Hoffman, Disputing Limited Liability, 104 Nw. U. L. Rev. 853 (2010);
45. Pauline T. Kim et al., How Should We Study District Judge Decision-Making?, 29 Wash. U. J.L. & Pol'y 83 (2009);
46. James D. Cox, et al., There Are Plaintiffs and... There Are Plaintiffs: An Empirical Analysis of Securities Class Action Settlements, 61 Vand. L. Rev. 355 (2008);
47. David L. Schwartz, Practice Makes Perfect? An Empirical Study of Claim Construction Reversal Rates in Patent Cases, 107 Mich. L. Rev. 223 (2008).
48. Kim et al., supra note 31, at 85.
49. Boyd & Hoffman, supra note 31, at 877 n.119, 880.
50. Gillian K. Hadfield, Judging Science: An Essay on the Unscientific Basis of Beliefs About the Impact of Legal Rules on Science and the Need for Better Data About Law, 14 J.L. & Pol'y 137-145 (2006) (observing that cases are coded in the federal docket database PACER for a single type, even if the case involves multiple causes of action);
51. Mary Whisner, Unanswerable Questions, 100 Law Libr. J. 581-583 (2008) (noting that the "Nature of Suit" coding in PACER lacks the detail needed for finding many types of cases).
52. Rankin v. McPherson, 483 U.S. 378, 385 n.8 (1987) (responding to the dissent's objection that the majority "failed to accord adequate deference to the purported "findings'" of the trial court by explaining that "any factual findings subsumed in [a constitutional] determination are subject to constitutional fact review" by the appellate court).
53. Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229 (1985).
54. A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684, 689 (7th Cir. 2002) ("That admixture of fact and law, sometimes called an issue of "constitutional fact,' is reviewed without deference in order to prevent the idiosyncrasies of a single judge or jury from having far-reaching legal effects."); see also Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (conducting de novo review of district court's findings on each part of test for Establishment Clause).
55. David A. Hoffman et al., Docketology, District Courts, and Doctrine, 85 Wash. U. L. Rev. 681, 710 (2007) (finding that 3% of cases in 4 district courts resulted in written decisions);
56. Susan M. Olson, Studying Federal District Courts Through Published Cases: A Research Note, 15 Just. Sys. J. 782-790 (1992) (finding that only 5.3% of cases brought before a Minnesota district court received published opinions, though the percentage varied by the type of claim);
57. Margo Schlanger & Denise Lieberman, Using Court Records for Research, Teaching, and Policymaking: The Civil Rights Litigation Clearinghouse, 75 UMKC L. Rev. 155, 165 (2006) (finding that 8.7% of district court dispositions were accompanied by a written opinion while only 2.3% of district court dispositions were published).
58. See Sisk, Heise & Morriss, supra note 8, at 546 (defining a "merits" ruling).
59. See id. at 547-548.
60. See id. at 552-553.
61. Id. at 553.
62. In our prior study of lower federal court decisions from 1986 to 1995, claimants were successful in 42.3 percent of the judicial observations. Id. at 571.
63. In clustering standard errors at the circuit level, we aimed to account for the effect of circuit precedent and, indirectly, regional variation. Alternatively, we also conducted a regression analysis that clustered standard errors at the judge level (given that several judges produced more than one judicial participation in our study). Finding no substantive differences, we do not separately report that regression table.
64. Donald R. Songer et al., Continuity and Change on the United States Courts of Appeals 103-104 (2000) (explaining that in studies of "specific linkages between policy preferences and decision making," scholars long have employed partisanship as "at least [a] rough surrogate[] for certain policy preferences");
65. James J. Brudney, Recalibrating Federal Judicial Independence, 64 Ohio St. L.J. 149-162 (2003) (describing the line of research since the 1960s indicating "that party affiliation is a significant predictor of voting patterns by federal judges").
66. See infra Section I.B.3.
67. Joshua B. Fischman & David S. Law, What Is Judicial Ideology, and How Should WeMeasureIt?, 29 Wash. U. J.L. & Pol'y 133, 162, 176-83 (2009) (describing behavioral measures of ideology based on voting by individual judges in sets of cases);
68. Corey Rayburn Yung, Judged by the Company You Keep: An Empirical Study of the Ideologies of Judges on the United States Courts of Appeals, 51 B.C. L. Rev. 1133-1139 (2010) (reporting that author's new ideology measure, based on mapping of patterns among judges and identifying voting blocs, better predicted civil rights outcomes than other measures of ideology).
69. See Fischman & Law, supra note 46, at 167-68 (suggesting that "[t]he enduring popularity of this measure most likely derives from a combination of" how easy it is "both to observe and to interpret" and the long history of studies finding a "correlation between party of appointing official and judicial ideology").
70. For critiques of this and other measures of ideology, many of which we offered in our own past work, see infra notes 156-159 and accompanying text.
71. See infra Section II.A.1-2.
72. Building on our prior work involving religious affiliation influences on federal judges, we plan to conduct a particularized study in the near future on the interaction between party and religious affiliation, such as whether Catholic or Jewish judges appointed by Republican presidents respond differently to Establishment Clause claims than those of other religions appointed by Republican presidents or those of the same religion appointed by Democratic presidents.
73. See infra Section I.B.3.
74. Alan Agresti & Barbara Finlay, Statistical Methods for the Social Sciences 154 (4th ed., 2009) (explaining that social scientists generally "do not regard the evidence against [the null hypothesis] as strong unless P is very small, say, P <.05 or P <.01").
75. Cross, supra note 24, at 4.
76. Id.
77. By "effect size," we mean a particular "measure of the strength of association between two variables."
78. Fredrick E. Vars, Rethinking the Indefinite Detention of Sex Offenders, 44 Conn. L. Rev. 161, 184 (2011).
79. Robert M. Lawless et al., Empirical Methods in Law 239 (2010).
80. Lee Epstein, Andrew D. Martin & Matthew M. Schneider, On the Effective Communication of the Results of Empirical Studies, Part I, 59 Vand. L. Rev. 1811-1814 (2006).
81. Looking at the raw frequencies in this study, Democratic-appointed judges upheld 54.7% of Establishment Clause claims and Republican-appointed judges upheld 28.3%. That the predicted rate after regression and holding other variables constant is only somewhat higher (a margin of 31.9% compared to 26.4%) suggests that the party variable association with the outcome dependent variable is strong and not substantially affected by other variables in the model.
82. See supra notes 31-37 and accompanying text.
83. The 234 judicial observations in the 45 non-unanimous appellate cases include not only those cast in three-judge panels but also the more numerous votes cast by judges deciding Establishment Clause cases after an en banc circuit hearing.
84. The 95% confidence interval for predicted success rate before a Republican-appointed court of appeals judge in a non-unanimous decision ranges from 7.1% to 19.3%. On 95% confidence intervals, see supra notes 56-58 and accompanying text.
85. The 95% confidence interval for predicted success rate before a Democratic-appointed court of appeals judge in a non-unanimous decision ranges from 55.9% to 85.2%.
86. C.K. Rowland & Robert A. Carp, Politics and Judgment in Federal District Courts 40 (1996).
87. Sisk & Heise, Judges and Ideology, supra note 8, at 767. See also infra notes 256- 260, accompanying text, and Figure 8.
88. The 95% confidence interval for predicted success rate before a Republican-appointed judge in the 1986-1995 data set ranged from 26.0% to 42.7%.
89. The 95% confidence interval for predicted success rate before a Democratic-appointed judge in the 1986-1995 data set ranged from 41.1% to 65.4%.
90. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1717 (1997).
91. Frank B. Cross & Emerson H. Tiller, Essay, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L. J. 2155 (1998).
92. Cass R. Sunstein et al., Are Judges Political? 8-11 (2006).
93. Derek J. Linkous & Emerson H. Tiller, Response, Panel Effects, Whistleblowing Theory, and the Role of Legal Doctrine, 158 U. Pa. L. Rev. PENNumbra 83, 83 (2009), http://www.pennumbra.com/responses/11-2009/LinkousTiller.pdf.
94. Pauline T. Kim, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, 157 U. Pa. L. Rev. 1319, 1329-38 (2009).
95. Joshua B. Fischman, Understanding Voting Behavior in Circuit Court Panels, Nw. L. Sch. Searle Center 2-3 (Aug. 11, 2010), http://www.law.northwestern.edu/searlecenter/papers/Fischman_voting_behavior.pdf.
96. Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. Pa. L. Rev. 1639, 1641, 1661 (2003).
97. Richard A. Posner, How Judges Think 32-34 (2008).
98. Cross & Tiller, supra note 68, at 2159-61, 2171-72.
99. Kim, supra note 71, at 1328, 1368.
100. See Sunstein et al., supra note 69, at 67-69.
101. Sean Farhang & Gregory Wawro, Institutional Dynamics on the U.S. Court of Appeals: Minority Representation under Panel Decision Making, 20 J.L. Econ. & Org. 299, 324 (2004) ("[In employment discrimination cases] male judges vote more liberally when one woman serves on a panel with them.");
102. Jennifer L. Peresie, Note, F e m a l e J u d g e s Matter: Gender and Collegial Decisionmaking in the Federal Appe llate Courts, 114 Yale L.J. 1759, 1778 (2005) (finding that a male judge was twice as likely to rule for the plaintiff in sexual harassment or sex discrimination cases if a woman judge was on the panel).
103. Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 Colum. L. Rev. 1, 4, 34-37 (2008) (finding a 20 percent higher probability that a white judge will vote in favor of a voting rights claim when sitting on a panel with an African-American judge).
104. Fischman, supra note 71, at 3-4;
105. Joshua B. Fischman, Estimating Preferences of Circuit Judges: A Model of "Consensus Voting", J.L. & Econ. (forthcoming) (manuscript at 2), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1361348 (analyzing the desire for consensus among judges and the effect on appellate panels).
106. Sean Farhang & Gregory Wawro, Indirect Influences of Gender on the U.S. Court of Appeals: Evidence from Sexual Harassment Law, Colum. U., http://www.columbia.edu/~gjw10/FarhangWawroIndirectEffectsMay2010.pdf (last visited Jan. 20, 2012) (finding significant gender-based panel effects in sexual harassment cases).
107. In coding these variables, we included all three-judge appellate panels, including those that preceded an en banc rehearing and those that were the subject of dissents from denial of rehearing en banc, but only the members of the original three-judge panel were coded for investigation of panel effects.
108. Adam B. Cox & Thomas J. Miles, Judicial Ideology and the Transformation of Voting Rights Jurisprudence, 75 U. Chi. L. Rev. 1493, 1530-32 (2008)
109. Using variables for one and two additional Democratic-appointed judges as control variables for the partisan composition of a panel). We ran each of these four variables in separate regression runs because we found them to be overlapping and collinear. Panels on which the coded judge was joined by two additional Republicans (or Democrats) obviously also included one additional Republican (or Democrat). And if a panel included two additional Republicans, then it obviously could not include any additional Democrats (and vice versa).
110. In this study, we did not exclude district court judges sitting on a three-judge appellate panel by designation but reported the full population of judges who actually decided appellate cases. (District court judges did not sit on en banc appellate panels.) District court judges sitting by designation accounted for only 17 of the 422 overall appellate judicial votes in Establishment Clause cases. District court judges served on 17 of the 101 three-judge panels, with 6 of those 17 being divided panels. Recent empirical work on district court judges sitting by designation in a large sample of appellate cases found that, in 83% of cases, "district court judges are no different than regular sitting court of appeals jurists when it comes to the influence of their fellow panelists."
111. Paul M. Collins, Jr. & Wendy L. Martinek, The Small Group Context: Designated District Court Judges in the U.S. Courts of Appeals, 8 J. Empirical Legal Stud. 177, 194-95 (2011).
112. In the 17% of the cases in which there was found to be a statistically significant difference, the influence of the ideology of other panel members on a designated district court judge was more than three times greater than on court of appeals judges, although the actual margin of difference was still substantively small; for example, when the other two panel members were highly conservative, a district court judge sitting by designation was predicted to be 4% more likely to cast a conservative vote, while a court of appeals judge sitting on a panel with similarly coded conservative judges was only 1.3% more likely to reach a conservative outcome. Id. at 195.
113. Although these observations came from 101 three-judge panels, the total number of judges on these panels who were coded on the merits for Establishment Clause votes came to 287, because some judges on those panels concurred or dissented on separate grounds that did not resolve the merits of the claim.
114. In sum, the probability that there is no variation between the predicted rates of a positive judicial vote on an Establishment Clause claim with or without an additional Democratic- or Republican-appointed judge on a panel is greater than 5% or even 10%. To give the reader a sense of the size effect of the correlation, despite the lack of statistical significance, our best estimate is that the addition of a Democratic-appointed judge to a panel would have increased the predicted probability that a judge would vote in favor of the Establishment Clause claim from 27.7% to 39.4%. However, as expected because the variable is not statistically significant, the 95% confidence intervals overlap considerably, with the upper end of the interval for the scenario with no additional Democratic-appointed judge rising to 37.1% and the lower end of the interval for the scenario with an additional Democratic-appointed judge beginning at 28.7%. On 95% confidence intervals, see supra notes 56-58 and accompanying text.
115. Keith T. Poole & Howard Rosenthal, Congress: A Political-Economic History of Roll Call Voting (1997).
116. Micheal Giles, Virginia A. Hettinger & Todd Peppers, Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 Pol. Res. Q. 623 (2001);
117. See also Fisch-man & Law, supra note 46, at 173-76 (describing and evaluating Common Space Scores as measure of judicial ideology); Sisk & Heise, Judges and Ideology, supra note 8, at 783-91 (describing and critiquing the Common Space Score measure).
118. Giles, Hettinger & Peppers, supra note 86, at 631.
119. Lee Epstein et al., The Judicial Common Space, 23 J.L. Econ. & Org. 303-306 (2007).
120. Robert Anderson, Law, Fact, and Discretion in the Federal Courts: An Empirical Study, 2012 Utah L. Rev. (forthcoming) (manuscript at 23-24);
121. Micheal W. Giles, Thomas Walker & Christopher Zorn, Setting a Judicial Agenda: The Decision to Grant En Banc Review in the U.S. Courts of Appeals, 68 J. Pol. 852-854 (2006).
122. Fischman & Law, supra note 46, at 204; Sisk & Heise, Judges and Ideology, supra note 8, at 788-89.
123. Micheal Giles, Virginia A. Hettinger & Todd Peppers, Measuring the Preferences of Federal Judges: Alternatives to Party of the Appointing President 10 (2002) (working paper) (finding that the Common Space Score measure "clearly out-perform[s] simple reliance on the party of the appointing president").
124. Fischman & Law, supra note 46, at 175 (observing that the results produced with Common Space Scores "are less intuitive and more difficult to interpret").
125. Giles, Hettinger & Peppers, supra note 90, at 5-6.
126. On 95 percent confidence intervals, see supra notes 56-58 and accompanying text.
127. 521 U.S. 203, 235-37 (1997).
128. 536 U.S. 639 (2002).
129. As Donald Songer and Susan Tabrizi have explained, [In a study of evangelical Christian judges and rulings in death penalty, gender discrimination, and obscenity cases,] [t]he case facts employed in each model below are primarily viewed as control variables to insure that any associations discovered between religion and judicial decisions are not an artifact of some correlation between particular types of cases and the concentration of particular religions in regions giving rise to those types of cases.
130. Donald R. Songer & Susan J. Tabrizi, Research Note, The Religious Right in Court: The Decision Making of Christian Evangelicals in State Supreme Courts, 61 J. Pol. 507-517 (1999).
131. For a discussion of Case Type control variables and a further description of them as used in our prior study of Establishment Clause decisions, see Sisk, Heise & Morriss, supra note 8, at 573-74.
132. The sixth Case Type dummy variable ("Other") was omitted as the reference variable.
133. Dale E. Jones et al., Glenmary Research Center, Religious Congregations & Membership in the United States 2000 (2002).
134. Sisk, Heise & Morriss, supra note 8, at 585. For more on including religious characteristics of the community in empirical studies, including judicial decisionmaking, see id.
135. Christopher G. Ellison, Jeffrey A. Burr & Patricia L. McCall., Religious Homogeneity and Metropolitan Suicide Rates, 76 Soc. Forces 273-278 (1997).
136. Earl Black & Merle Black, Divided America 105-107 (2007) (describing the traditional concentrations of liberal Catholics, among other Democratic constituencies, in New York City, Baltimore, Boston, Philadelphia, and Pittsburgh).
137. U.S. Const. amend. I.
138. 330 U.S. 1 (1947).
139. 370 U.S. 421 (1962).
140. Thomas C. Berg, The Story of the School Prayer Decisions: Civil Religion Under Assault, in First Amendment Stories 193 (Richard Garnett & Andrew Kop-pelman eds., 2012).
141. Thomas C. Berg, Lemon v. Kurtzman: The Parochial School Crisis and the Establishment Clause, in Law and Religion: Cases in Context 153-155 (Leslie Griffin ed., 2010).
142. Everson, 330 U.S. at 16.
143. Id.
144. Id.
145. Id.
146. Va n Orden v. Perry, 545 U.S. 677, 683 (2005).
147. Scott C. Idleman, The Underlying Causes of Divergent First Amendment Interpretations, 27 Miss. C. L. Rev. 67, 83 (2007).
148. Susan Dudley Gold, Engel v. Vitale: Prayer in the Schools 103 (2006).
149. Berg, supra note 105, at 211; see also The Times Were a Changin': The Sixties Reader 221 (Irwin Unger & Debi Unger eds., 1998) ("One of the right-wing icons of the decade was the ubiquitous "Impeach Earl Warren' billboard, sponsored by the far right John Birch Society and displayed across Dixie and in parts of the North.").
150. Louis Bolce & Gerald De Maio, Secularists, Antifundamentalists, and the New Religious Divide in the American Electorate, in From Pews to Polling Places: Faith and Politics in the American Religious Mosaic 251-256 (J. Matthew Wilson ed., 2007).
151. Id. at 265.
152. Geoffrey Layman, The Great Divide: Religious and Cultural Conflict in American Party Politics 43, 183-85, 192 (2001).
153. Id. at 186-201.
154. John C. Green, The Faith Factor 39 (2007).
155. Stephen T. Mockabee, The Political Behavior of American Catholics: Change and Continuity, in From Pews to Polling Places: Faith and Politics in the American Religious Mosaic, supra note 115, at 81, 83-85.
156. Id. at 84 tbl.4.1, 85. On the contrast between Catholic support for Kennedy in 1960 and for Kerry in 2004.
157. David E. Campbell, A House Divided? What Social Science Has to Say about the Culture War, 15 Wm. & Mary Bill Rts. J. 59-67 (2006).
158. Clem Brooks & Jeff Manza, A Great Divide? Religion and Political Change in U.S. National Elections, 1972-2000, 45 Soc. Q. 421-442 (2004);
159. Harold W. Stanley & Richard G. Niemi, Partisanship, Party Coalitions, and Group Support, 1952-2004, 36 Presidential Stud. Q. 172-180 (2006) ("Declining Democratic partisanship among Catholics and regular church-goers was also matched by increasing identification with Republicans.").
160. William A. Galston, Political Polarization and the U.S. Judiciary, 77 UMKC L. Rev. 307-308 (2008);
161. Andrew Kohut et al., The Diminishing Divide: Religion's Changing Role in American Politics 4 (2000).
162. 2000 National Election Exit Poll Results, ABCNews.com, http://abcnews.go.com/sections/politics/2000vote/general/exitpoll_hub.html (last visited Jan. 20, 2012); Note
163. 2004 U.S. President National Exit Poll Results, CNN.com, http://www.cnn.com/ELECTION/2004/pages/results/states/US/P/00/epolls.0.html (last visited Jan. 20, 2012).
164. Pew Forum on Religion & Pub. Life, U.S. Religious Landscape Survey 19 (2008), available at http://religions.pewforum.org/pdf/report2-religious-landscape-study-full.pdf.
165. See Kohut et al., supra note 123, at 3.
166. Layman, supra note 117, at 107, 108 fig.3.2, 109, 124.
167. 2000 National Election Exit Poll Results, supra note 124.
168. Compare id. (2000 margins), with 2004 U.S. President National Exit Poll Results, supra note 124 (2004 margins).
169. Steven H. Shiffrin, The Religious Left and Church-State Relations 3-4 (2009) (advocating greater engagement in American politics by religious progressives on expressly religious premises, while acknowledging that "the secular Left is believed to dominate the Democratic Party").
170. In a survey of political attitudes in 2010, the Pew Research Center identified two Democratic-leaning typologies of voters who remain highly religious: "New Coalition Democrats," a majority of whom are minorities and who are both highly religious and financially stressed, and "Hard-Pressed Democrats," who are blue-collar, struggling financially, and very religious. Pew Research Center for the People & the Press, Beyond Red vs. Blue: Political Typology 15-16 (2011), available at http://people-press.org/files/legacy-pdf/Beyond-Red-vs-Blue-The-Political-Typology.pdf.
171. Stephen M. Feldman, Religious Minorities and the First Amendment: The History, the Doctrine, and the Future, 6 U. Pa. J. Const. L. 222-246 (2003);
172. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Va. L. R e v. 1, 58 (1996) ("As a small minority within an overwhelmingly Christian nation, Jews generally favored a policy of stringent separationism, rather than one of nondiscrimination against particular sects.").
173. David E. Campbell, supra note 121, at 64 (describing the difference in religious activity associated with political affiliation as the "Devotional Divide").
174. Jay Lefkowitz, The Election and the Jewish Vote, Comment., Feb. 2005, at 61-64 (reporting that 40% of Jews who attend synagogue weekly and 69% of Orthodox Jews voted for Republican George W. Bush in 2004, compared to only 18% of Jews who rarely or never attend synagogue).
175. See Galston, supra note 123, at 319; Kohut et al., supra note 123, at 74.
176. Michael Hout & Claude S. Fischer, Why More Americans Have No Religious Preference: Politics and Generations, 67 Am. Soc. Rev. 165-179 (2002) (suggesting in a study of religious preferences, not including a focus on political party affiliation, that the "religiously tinged political atmosphere not only brought some religious people out of apathy into politics but also pushed some moderate and liberal Americans with weak religious attachments away from religion").
177. Layman, supra note 117, at 107.
178. Michael Gerson, Op-Ed., Obama's New Culture War over Government's Role, Wash. Post, Oct. 5, 2010, at A15, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/04/AR2010100404560.html ("As a candidate, it was a measure of Barack Obama's political innovation and ambition that he set out to win religious voters, including evangelical Christians.... During the campaign, Obama's brand of progressivism was refreshingly free of secularism.").
179. See 2008 Presidential Election National Exit Poll, CNNPolitics.com, http://www.cnn.com/ELECTION/2008/results/polls/#val=USP00p2 (last visited Jan 20, 2012).
180. Id.; see also John C. Green & Scott Clement, Much Hope, Modest Change for Democrats: Religion in the 2008 Presidential Election, Pew Forum on Religion & Pub. Life (Aug. 11, 2010), http://pewforum.org/Politics-and-Elections/Much-Hope-Modest-Change-for-Democrats-Religion-in-the-2008-Presidential-Election.aspx (finding that "the contours of religion and politics were the same in 2008 as in 2004," and that "the large gaps in the electorate that had developed along religious lines in earlier elections persisted in 2008").
181. 2010 U.S. House of Representatives National Exit Poll, CNNPolitics.com, http://www.cnn.com/ELECTION/2010/results/polls/#USH00p1 (last visited Jan. 20, 2012); Note
182. see also Daniel Burke, Have Democrats Lost Faith in Faith-Based Outreach?, Religion News Stories (Nov. 3, 2010), http://www.religionnews.com/index.php?/rnstext/have_ democrats_lost_faith_in_faith_based_outreach (reporting that the Democratic Party's "hard-won gains among religious voters are largely gone").
183. Bolce & De Maio, supra note 115, at 264, 265 & fig.10.1.
184. This chart is reprinted by permission from Bolce & De Maio, supra note 115, at 265. Copyright 2007 by Georgetown University Press.
185. Louis Bolce and Gerald De Maio, "Secularists, Antifundamentalists, and the New Religious Divide in the American Electorate." In From Pews to Polling Places: Faith and Politics in the American Religious Mosaic, J. Matthew Wilson, Editor, p. 265. Reprinted with permission. www.press.georgetown.edu.
186. Laura R. Olson & John C. Green, "Gapology" and the 2004 Presidential Vote, in Beyond Red State, Blue State: Electoral Gaps in the Twenty-First Century American Electorate 4 (Laura R. Olson & John C. Green, eds., 2008).
187. Some scholars fairly question the broader proposition that Americans are sharply and contentiously divided, arguing instead that "there is actually widespread agreement, or at least a fairly comfortable majority view, about religion's place in politics."
188. Richard W. Garnett, "Modest Expectations"?: Civic Unity, Religious Pluralism, and Conscience, 23 Const. Comment. 241-257 (2006) (reviewing Noah Feldman, Divided by God (2005) and Kevin Seamus Hasson, The Right to Be Wrong (2005)).
189. Professor Richard Garnett suggests, [M]ost people in America probably think... that the institutions of religion and government should be separate, but also that religious faith remains an important part of both individual and social life, one that-consistent with the reality of pluralism and a commitment to the rights of minorities-does and should play a role in shaping our culture and institutions.
190. Id. Indeed, most Americans may fall into a critical mass of general consensus; although rather than bridging the gap between religionists and seculars, the center of gravity of the American population as a whole may be located closer to the pro-religion side of the spectrum.
191. Louis Bolce & Gerald De Maio, The Divisiveness Rationale and Negative Reference Group Associations in Church-State Controversies, in Religion, Politics, and American identity: New Directions, New Controversies 109
192. David Gutterman & Andrew Murphy, eds., 2006) ("One of the reasons most Americans do not oppose organized religious groups' participating in the political process is that most do not think that religion's influence on political life is particularly harmful."). In any event, the political science and sociology literature surveyed above confirms that most political activists in the two major parties, who are also those involved in making political appointments and litigating disputes, stand at greater distances from one another on questions of Church and State than do most Americans.
193. See, e.g., 2004 Republican Party Platform: A Safer World and a More Hopeful America 1 (2004), available at http://www.presidency.ucsb.edu/papers_pdf/ 25850.pdf; Note
194. 2008 Republican Platform i, ii, 45, 54 (2008), available at http://www.presidency.ucsb.edu/papers_pdf/78545.pdf; Note
195. Republican Party Platform of 1996, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25848.
196. See, e.g., Democratic Party Platform of 1996, available at http://www.presidency.ucsb.edu/ws/index.php?pid=29611; Note
197. Democratic Party Platform of 2000, available at http://www.presidency.ucsb.edu/ws/index.php?pid=29612; Note
198. Report of the Platform Committee: Renewing America's Promise 40, 52 (2008), available at http://www.presidency.ucsb.edu/papers_pdf/78283.pdf.
199. But see Strong at Home, Respected in the World: The 2004 Democratic National Platform for America 2, 19, available at http://www.presidency.ucsb.edu/papers_pdf/29613.pdf (twice referring to "one nation under God").
200. 2004 Republican Party Platform: A Safer World and a More Hopeful America, supra note 145, at 77, 82 (school prayer and Ten Commandments);
201. 2008 Republican Platform, supra note 145, at 44-45, 53 (school prayer and display of Ten Commandments);
202. Republican Party Platform of 1972, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25842 (school prayer); Note
203. Republican Party Platform of 1976, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25843 (school prayer); Note
204. Republican Party Platform of 1980, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25844 (school prayer); Note
205. Republican Party Platform of 1984, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25845 (school prayer); Note
206. Republican Party Platform of 1988, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25846 (school prayer); Note
207. Republican Party Platform of 1992, available at http://www.presidency.ucsb.edu/ws/index.php?pid= 25847 (school prayer); Note
208. Republican Party Platform of 1996, supra note 145 (school prayer);
209. Republican Party Platform of 2000, available at http://www.presidency.ucsb.edu/ws/index.php?pid=25849 (school prayer and Ten Commandments).
210. Cf. Democratic Party Platform of 1996, supra note 146 (The Platform "ap-plaud[s] the President's work to ensure that children are not denied private religious expression in school," without mentioning prayer).
211. 2008 Republican Platform, supra note 145, at 53;
212. see also 2004 Republican Party Platform: A Safer World and a More Hopeful America, supra note 145, at 77 ("[W]e condemn judicial activists and their unwarranted and unconstitutional restrictions on the free exercise of religion in the public square.").
213. Text of 1984 Democratic Party Platform, 40 Cong. Q. Almanac 73B-106B (1984), available at http://library.cqpress.com/cqalmanac/cqal84-856-25733-1150986.
214. Feldman, supra note 21, at 7-8 (internal quotation marks omitted).
215. Marc O. DeGirolami, The Handmaid of Politics, 26 J.L. & Religion 641-645 (2011) (reviewing Steven H. Shriffin, The Religious Left and Church-and-State Relations (2009)).
216. See supra Part I.B.1.
217. See, e.g., Rowland & Carp, supra note 63, at 34 (finding a difference of 10% to 13% between Democratic-appointed and Republican-appointed judges for all types of cases); Sunstein et al., supra note 69, at 8-13 (finding that Democratic-appointed federal appellate judges cast "stereotypically liberal" votes about 12% more of the time than Republican-appointed judges, on "a number of controversial issues that seem especially likely to reveal divisions");
218. Ronald Stidham, Robert A. Carp & Donald R. Songer, The Voting Behavior of President Clinton's Judicial Appointees, 80 Judicature 16-20 (1996) (concluding that Clinton's appointees have demonstrated moderate decisional tendencies and finding small differences in "liberal" voting rates, generally under 10% across categories of cases, for both district and court of appeals judges).
219. 155 Sunstein et al., supra note 69, at 12.
220. Gregory C. Sisk, The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making, 93 Cornell L. Rev. 873-892 (2008) (reviewing Frank B. Cross, Decision Making in the U.S. Courts of Appeals (2007)).
221. See Sisk & Heise, Judges and Ideology, supra note 8, at 784-85, 793; Sisk, supra note 156, at 892-93.
222. Sisk & Heise, Judges and Ideology, supra note 8, at 794.
223. Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 Duke L.J. 1895-1922 (2009) (addressing the failure of empirical studies to "[m]eaningfully [d]efine and [m]easure '[i]deology'");
224. Fischman & Law, supra note 46, at 137-213 (addressing the theoretical and methodological difficulties in defining, measuring, and analyzing ideology as an influence on judges, concluding that an ideology measure based on the actual behavior of judges in deciding cases offers advantages in several contexts of empirical study); Yung, supra note 46, at 1135-36 (critiquing the Party of Appointing President and Common Space Score ideology proxies).
225. Michael A. Livermore, Response, Realist Lawyers and Realistic Legalists: A Brief Rebuttal to Judge Posner, 59 Duke L.J. 1187-1192 (2010).
226. Judge Patricia Wald similarly rejects the assumption, apparently indulged by some empirical scholars, "that judges intentionally act in alignment with the party from which they sprung."
227. Patricia M. Wald, Colloquy, A Response to Tiller and Cross, 99 Colum. L. Rev. 235-240 (1999).
228. Fischman & Law, supra note 46, at 170.
229. Fred Shapiro, Quotes Uncovered: What's the Plural of Anecdote?, Freakonomics (Apr. 29, 2010, 2:00 PM), http://www.freakonomics.com/2010/04/29/quotes-uncovered-whats-the-plural-of-anecdote (internal quotation marks omitted).
230. See Agresti & Finlay, supra note 52, at 359 ("Sometimes you hear people give anecdotal evidence to attempt to disprove causal relationships.... An association does not need to be perfect, however, to be causal.").
231. Sisk, Heise & Morriss, supra note 8, at 578.
232. John C. Blakeman & Christopher P. Bank, Presentation at Western Political Science Association Annual Meeting, The Religiosity of Federal District Judges: Preliminary Results from a Pilot Study of the Sixth Federal Circuit 26 (2009), available at http://www.allacademic.com/meta/p_mla_apa_research_citation/3/1/7/4/3/p317437_index.html (describing preliminary study of religious beliefs and behaviors of federal judges and hypothesizing that "the congregational context of a district judge's religious life [may] correlate[] with his or her views on the religious liberty clauses in the First Amendment").
233. In our prior study of religious liberty decisions in the lower federal courts for the period 1986-1995, we found that judges appointed by Presidents Eisenhower, Kennedy, and Johnson were significantly more likely to be associated with a Pro-Secular Model constructed from both Free Exercise and Establishment Clause decisions. Sisk & Heise, Judges and Ideology, supra note 8, at 768-69. When we published that earlier study, we speculated that judges appointed during this era spent their formative years in the practice of law and on the federal bench (from the 1940s to the early 1970s) at the highwater mark of the Supreme Court's sepa-rationist approach to Establishment Clause cases.
234. That Pro-Secular Model is not directly parallel, although it overlaps, with the Establishment Clause stage of the present study, because the Pro-Secular Model in that prior study was defined not only by favorable responses to Establishment Clause claims but also by negative responses to Free Exercise claims (and the latter constituted a much larger proportion of the decisions in the model). In any event, notably, the Eisenhower, Kennedy, and Johnson judges had been appointed by presidents of both parties, which is consistent with our current hypothesis that the partisan divide on Church and State issues did not emerge until the period in which judges were being appointed by Presidents Carter and Reagan and thereafter.
235. Galston, supra note 123, at 317; see also Brooks & Manza, supra note 122, at 434 (finding that, for evangelicals, higher levels of religious participations were correlated with stronger support for Republican candidates).
236. Michael Boudin, Response, A Response to Professor Ramseyer, Predicting Court Outcomes Through Political Preferences, 58 Duke L.J. 1687-1688 (2009) ("Policy often matters in deciding cases, but it is usually policy attributable to Congress or to public policy reflected in case law, common sense, and the values of the community. [So w]here exactly should judges look when existing law stops short?").
237. McDonald v. City of Chicago, 130 S. Ct. 3020, 3058 (2010) (Scalia, J., concurring) (addressing whether the Second Amendment right to keep and bear arms should be incorporated against the states through substantive due process). But see Ronald Dworkin, Law's Empire 256 (1986) (saying that judges' "own moral and political convictions" must be "directly engaged" to determine "what the law of their community, properly understood, really is");
238. Posner, supra note 73, at 9 ("[L]aw is shot through with politics and with much else besides that does not fit a legalist model of decision making.");
239. Richard A. Posner, Response, Some Realism about Judges: A Reply to Edwards and Livermore, 59 Duke L.J. 1177-1182 (2010) ("[L]aw is suffused with politics (in the ideological rather than the partisan sense...) Constitutional law...is political in the sense of being the product not of orthodox legal materials (authoritative text plus precedents) but of the values, political in a broad (but sometimes in a rather narrow) sense, of the Justices.").
240. Pettys, supra note 3, at 127.
241. Id. at 142.
242. Id. at 176.
243. Id. at 127.
244. Lawrence M. Solan, The Language of Statutes 3 (2010).
245. Id. at 5.
246. Kent Greenawalt, Fundamental Questions About the Religion Clauses: Reflections on Some Critiques, 47 San Diego L. Rev. 1131-1149 (2010)
247. "The fact that lower courts will reach different conclusions from each other about borderline situations [in Religion Clause cases] is moderately troubling, but the resulting differential treatment is not a major social problem, and those raising constitutional claims will certainly prefer occasional uncertainty to rules that render their claims totally ineffective.".
248. Steven G. Gey, Religion and the State 293 (2d ed. 2006) ("[S]ome lower courts have simply thrown up their hands and resorted to applying several different tests in each case.").
249. Bauchman ex rel. Bauchman v. West High Sch., 132 F.3d 542, 550-51 (10th Cir. 1997) (quoting Lynch v. Donnelly, 465 U.S. 668, 678-79 (1984); Rosenberger v. Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J. concurring); Cnty. of Allegheny v. ACLU, 492 U.S. 573, 656 (1989) (Kennedy, J., concurring in part and dissenting in part)).
250. Steven D. Smith, Discourse in the Dusk: The Twilight of Religious Freedom?, 122 Harv. L. Rev. 1869-1871 (2009) (reviewing Kent Greenawalt, Discourse in the Dusk (2008)) (quoting Stephen G. Gey, Vestiges of the Establishment Clause, 5 First Amendment L. Rev. 1, 4 (2006)).
251. William Van Alstyne, Ten Commandments, Nine Judges, and Five Versions of One Amendment-The First. ("Now What?"), 14 Wm. & Mary Bill Rts. J. 17-19 n.10 (2005).
252. 545 U.S. 844 (2005).
253. McCreary, 545 U.S. at 869.
254. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (setting forth a balancing test for Establishment Clause cases that evaluates whether the government action (1) has a secular purpose, (2) has a primary effect that does not advance or inhibit religion, and (3) improperly fosters an excessive entanglement with religion). For a discussion of the Lemon test, see infra notes 214-216 and accompanying text.
255. McCreary, 545 U.S. at 869-74.
256. Id. at 883-884 (O'Connor, J., concurring).
257. Id. at 885-901 (Scalia, J., dissenting).
258. 545 U.S. 677 (2005).
259. Va n Orden, 545 U.S. at 681.
260. Id. at 686-688.
261. Id. at 692 (Scalia, J., concurring).
262. Id. at 693 (Thomas, J., concurring).
263. Id. at 701-702 (Breyer, J., concurring in judgment).
264. Id. at 699-700.
265. Id. at 707 (Stevens, J., dissenting).
266. Id. at 737 (Souter, J., dissenting) (citations omitted).
267. Id. at 737 (O'Connor, J., dissenting).
268. See supra note 186 and accompanying text.
269. Va n Orden, 545 U.S. at 697 (Thomas, J., concurring).
270. Harris v. City of Zion, 927 F.2d 1401, 1425 (7th Cir. 1991) (Easterbrook, J., dissenting).
271. Michael J. Gerhardt, Constitutional Humility, 76 U. Cinn. L. Rev. 23, 24, 46- 48 (2007)
272. Criticizing aspects of Chief Justice Roberts's analogy of judging to umpiring while acknowledging that the "analogy was brilliant because it tapped into a popular, if not dominant, belief in our culture about how judges should perform"-namely, that most Americans "want their judges to follow the law, wherever it takes them, and not to legislate from the bench or substitute their personal preferences for those which are embodied in the law"); Ler-ner & Lund, supra note 4, at 1256 (referring to "the existence of deep popular expectations about the distinction between law and politics").
273. Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. Rev. 383-388 (2007).
274. Kathleen M. Sullivan, The Supreme Court 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 58 (1992) ("A legal directive is 'standard'-like when it tends to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation.").
275. See Pierce v. Underwood, 487 U.S. 552, 562 (1988) (holding that the question of whether the federal government's position in litigation lacked "substantial justif[ication]" so as to be liable for the prevailing party's attorney's fees in a case presented "a multifarious and novel question, little susceptible, for the time being at least, of useful generalization, and likely to profit from the experience that an abuse-of-discretion rule will permit to develop" (internal quotation marks omitted)).
276. See Sisk & Heise, Muslims and Religious Liberty, supra note 8, at 56-57 (suggesting that in religious free exercise cases where empirical evidence shows a disadvantage for Muslim claimants, "individuated analysis, while resisting categorical generalizations... may advance more equitable and properly differentiated treatment of each religious claimant, Muslim or otherwise").
277. Kim, supra note 202, at 442.
278. Scott Dodson, The Complexity of Jurisdictional Clarity, 97 Va. L. Rev. 1, 15-20 (2011) (addressing the comparative benefits and costs of standards versus rules); see also Sullivan, supra note 203, at 58 ("A legal directive is 'rule'-like when it binds a decisionmaker to respond in a determinate way to the presence of delimited triggering facts.").
279. Sullivan, supra note 203, at 61.
280. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183-84 (1989) ("[T]he extent to which one can elaborate general rules from a statutory or constitutional command depends considerably upon how clear and categorical one understands the command to be, which in turn depends considerably upon one's method of textual exegesis.").
281. Sullivan, supra note 203, at 57.
282. See id. at 57 (explaining that balancing tests correspond to standards).
283. Cass R. Sunstein, Problems with Rules, 83 Calif. L. Rev. 953-960 (1995).
284. Id. at 1012.
285. 403 U.S. 602 (1971).
286. Lemon, 403 U.S. at 612-13 (citing Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).
287. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795-801 (1993).
288. Thomas C. Berg, Religion Clause Anti-Theories, 72 Notre Dame L. Rev. 693-701 (1997).
289. Id.
290. Michael W. McConnell, Christ, Culture, and Courts: A Niebuhrian Examination of First Amendment Jurisprudence, 42 DePaul L. Rev. 191-221 (1992).
291. Berg, supra note 217, at 701.
292. Lawrence B. Solum, Pluralism and Public Legal Reason, 15 Wm. & Mary Bill Rts. J. 7, 22 (2006).
293. Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 621-622.
294. Cox & Miles, supra note 81, at 1495;
295. Robert C. Longstreth, Does the Two-Prong Test For Determining Applicability of the Discretionary Function Exception Provide Guidance to Lower Courts Sufficient to Avoid Judicial Partisanship?, U. St. Thomas L.J. (forthcoming 2011)
296. Finding no substantial difference between Republican- and Democratic-appointed federal appellate judges in applying explicit first prong of test for discretionary function exception to Federal Tort Claims Act, but finding that Democratic-appointed judges rejected application of exception by a rate nearly three times higher than Republican-appointed judges on the indefinite second prong).
297. Cox & Miles, supra note 81, at 1537;
298. Tonja Jacobi & Emerson H. Tiller, Legal Doctrine and Political Control, 23 J.L. Econ. & Org. 326-327 (2007)
299. "[W]e model a judicial hierarchy where political control is exercised by higher courts over lower courts through the choice between determinate doctrines (highly specified, rule-like directives) and indeterminate doctrines (weakly specified, standard-like directives).").
300. Kim, supra note 202, at 416.
301. Cf. Cox & Miles, supra note 81, at 1525 (finding empirical results "consistent with the prediction that ideological disagreements will be more intense under standards than rules").
302. See Cross, supra note 24, at 200; see also Sisk, supra note 156, at 896 ("Empirical scholarship can show us where the judicial system is reasonably effective in exerting a "classic legal tug' against personal judicial preferences or attitudes, and where it falters.").
303. Richard W. Garnett, Judicial Enforcement of the Establishment Clause, 25 Const. Comm. 273-274 (2008) (footnote omitted) (referring to Kent Greenawalt's statement that "the [religion] clauses reflect such complex, often conflicting, values, that no tests can do them justice" (quoting 2 Kent Greenawalt, Religion and the Constitution 52 (2008))).
304. Id. at 277; see also Solum, supra note 221, at 15-16, 22 (arguing that "pluralism- religious and moral division-gives us reason to affirm an ideal of public legal reason that is best instantiated in the practice of legal formalism," such that judges would "resolve cases on the basis of legal texts without reference to underlying values" by applying such factors as precedent, plain meaning, structure, original meaning, and general default rules).
305. Garnett, supra note 228, at 275 (footnote omitted);
306. Thomas B. Griffith, Essay, Was Bork Right About Judges?, 34 Harv. J.L. & Pub. Pol'y 157-165 (2011)
307. Referring to "judicial humility" as "an indispensable temperament for a judge in our system"). But see Salazar v. Buono, 130 S. Ct. 1803, 1840 (2010) (Stevens, J., dissenting) ("[I]n the Establishment Clause context, we do not accord any special deference to the legislature on account of its generic advantages as a policymaking body, and the purpose test is not 'satisfied so long as any secular purpose for the government action is apparent'" (quoting McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 865 n.13 (2005) (emphasis added))).
308. Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 Am. Pol. Sci. Rev. 305 (2002). For more on jurisprudential regimes, see infra notes 237-251 and accompanying text.
309. 521 U.S. 203 (1997).
310. Agostini, 521 U.S. at 231.
311. The two decisions overruled were Aguilar v. Felton, 473 U.S. 402 (1985), and School District of Grand Rapids v. Ball, 473 U.S. 373 (1985).
312. Agostini, 521 U.S. at 218-36.
313. Id. at 230.
314. Richards & Kritzer, supra note 231, at 308.
315. Barry Friedman & Andrew D. Martin, Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-Making, in What's Law Got to Do with It? 143-146 (Charles Geyh ed., 2011).
316. On the Lemon test, see supra notes 214-216 and accompanying text.
317. Herbert M. Kritzer & Mark J. Richards, Research Note, Jurisprudential Regimes and Supreme Court Decisionmaking: The Lemon Regime and Establishment Clause Cases, 37 Law & Soc'y Rev. 827-839 (2003).
318. Richards & Kritzer, supra note 231, at 309.
319. See Kritzer & Richards, supra note 240, at 833-38;
320. Herbert M. Kritzer & Mark J. Richards, Taking and Testing Jurisprudential Regimes Seriously: A Response to Lax and Rad-er, 72 J. Pol. 285 (2010) (explaining statistical testing for jurisprudential regime shift).
321. Agostini v. Felton, 521 U.S. 203, 209, 236 (1997).
322. Mitchell v. Helms, 530 U.S. 793, 807 (2000) (plurality opinion).
323. Agostini, 521 U.S. at 222-35; see also Mitchell, 530 U.S. at 808 (plurality opinion) ([O]ur cases had pared somewhat the factors that could justify a finding of excessive entanglement.").
324. Agostini, 521 U.S. at 231.
325. See id.; see also Mitchell, 530 U.S. at 810, 813 (plurality opinion) (describing the "principles of neutrality and private choice" as the two "primary criteri[a]" for determining the validity of government aid against an Establishment Clause challenge).
326. Id. at 230.
327. See Agostini, 521 U.S. at 237.
328. Michael W. McConnell, State Action and the Supreme Court's Emerging Consensus on the Line between Establishment and Private Religious Expression, 28 Pepp. L. Rev. 681-689 (2001).
329. Thomas C. Berg, Race Relations and Modern Church-State Relations, 43 B.C. L. Rev. 1009-1023 n.95 (2002).
330. Paul Horwitz, The Agnostic Age: Law, Religion, and the Constitution 15 n.22 (2011).
331. We also included a precedent variable for the Supreme Court's 2002 decision in Zelman v. Simmons-Harris, 536 U.S. 639, 648, 653 (2002), which upheld as "neutral" a school voucher program that allowed poor children in failing public schools to choose educational alternatives including private religious schools. The Zelman precedent variable did not approach statistical significance. We postulate that, while Zelman may have been the culmination of the Court's shift to a neutrality approach for government aid in Establishment Clause cases, the doctrinal heavy lifting had already been accomplished in Agostini. Thus, the lower court judges may have already readjusted their responses to Establishment Clause claims and did not need to significantly recalibrate those responses after Zelman.
332. The 95% confidence interval for predicted success rate before Agostini ranges from 36.6% to 69.4%. On 95% confidence intervals, see supra notes 56-58 and accompanying text.
333. The 95% confidence interval for predicted success rate after Agostini ranges from 30.1% to 41.5%.
334. Contrary to the conventional wisdom, even among many statisticians, the overlap of the 95 percent confidence intervals for the predicted probabilities of success before and after Agostini does not mean that the Agostini variable lacks a statistically significant correlation at the.05 level with the outcome dependent variable in our Party-of-Appointing-President model. Even with the confidence intervals overlapping, the probability is well below 5 percent that the actual predicted success value before Agostini lies in the very lower bottom of that interval and, simultaneously, the actual predicted success value after Agostini lies in the very top of that interval.
335. Peter C. Austin & Janet E. Hux, A Brief Note on Overlapping Confidence Intervals, 36 J. Vascular Surgery 194, 194 (2002);
336. Epstein, Martin & Schneider, supra note 57, at 1815 n.12 ("[W]hile the confidence intervals for these two predictions overlap, there is still a statistically significant difference between the predictions.").
337. The 95% confidence interval for predicted success rate before a Republican-appointed judge in the 1986-1995 data set ranged from 26.0% to 42.7%. On 95% confidence intervals, see supra notes 56-58 and accompanying text.
338. The 95% confidence interval for predicted success rate before a Republican-appointed judge in the 1996-2005 data set ranged from 19.5% to 31.3%.
339. The 95% confidence interval for predicted success rate before a Democratic-appointed judge in the 1986-1995 data set ranged from 41.1% to 65.4%.
340. The 95% confidence interval for predicted success rate before a Democratic-appointed judge in the 1996-2005 data set ranged from 42.4% to 72.1%.
341. Nor has the political difference faded even in the particular context of education, in which the Agostini case arose. In a forthcoming article focused on religious liberty claims (under both the Free Exercise and Establishment Clauses) that arose in public or private elementary and secondary schools, we find that a Republican-appointed judge is predicted to vote in a pro-religion direction at a rate of 59.0%, while the probability for a Democratic-appointed judge is 30.1%-a difference of nearly two-fold. Heise & Sisk, Religion, Schools, and Judicial Deci-sionmaking, supra note 8.
342. Frederick Schauer, Thinking Like a Lawyer 35 (2009).
343. But see id. at 195 ("[S]ome Rule of Law values are served by precise, predictable, and understandable rules, [while] others are served by relatively open-ended standards that will allow judges and other official decision-makers the discretion to do justice in the individual case.").
344. Brian Leiter, Legal Formalism and Legal Realism: What is the Issue?, 16 Legal Theory 111, 111 (2010) (internal quotation marks omitted) (describing "Vulgar Formalism" as the "idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism" (internal quotation marks omitted)).
345. Frank B. Cross & Blake J. Nelson, Strategic Institutional Effects on Supreme Court Decisionmaking, 95 Nw. U. L. Rev. 1437, 1437 (2001) (internal quotation marks omitted); cf. Edwards & Livermore, supra note 159, at 1916
346. "Deciding cases according to law and precedent, rather than personal political or ideological predilections, does not require judges to embrace the simpler and less defensible view that law absolutely dictates outcomes.").
347. Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging 118-119 (2010) ("For legally oriented judges, the law is not chains or ropes they are trying to wriggle out of but rather guideposts they are actively searching for and following to reach their destination.").
348. Id. at 197.
349. Sisk, supra note 156, at 877; see also Cross, supra note 24, at 9, 28, 165-68, 228- 29 (finding in a comprehensive study of federal appellate decision-making that ideology was a weaker influence than legal factors);
350. Jason J. Czarnezki & William K. Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Md. L. Rev. 841, 856-57 (2006) (finding no significant ideological influence in a study of all nonunanimous cases decided by one federal circuit over a several-year period).
351. Cross, supra note 24, at 38.
352. Stephen B. Burbank, On the Study of Judicial Behaviors: Of Law, Politics, Science and Humility 13-14 (Univ. of Pa. Law Sch., Public Law & Legal Theory Research Paper Series, Research Paper No. 09-11, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1393362
353. "The relationship between "law' and "judicial politics' may be obscured by the occasional failure of scholars to confine descriptions of their results, and their claims, to the judges, courts and cases in fact studied....").
354. Sisk & Heise, Judges and Ideology, supra note 8, at 746.
355. Ta m a n a h a, supra note 264, at 152.