Academic journal article
By Kritzer, Herbert M.; Richards, Mark J.
Law & Society Review , Vol. 37, No. 4
In this research note, we apply the construct of jurisprudential regimes as described in our recent article in American Political Science Review to the area of Establishment Clause jurisprudence. We hypothesize that Lemon v. Kurtzman represented a jurisprudential regime in the Supreme Court's decisionmaking in this area of law. Our analysis shows that the predictors of the Court's decisions in the two periods differed in ways that are very consistent with the types of changes one would expect the hypothesized regime shift to produce.
In a recent article (Richards & Kritzer 2002), we proposed a new way of conceptualizing the role of law for use in modeling Supreme Court decisionmaking. We suggested that it is incorrect to think of law at the Supreme Court level as operating through the traditional mechanisms of plain meaning, precedent, or intent of the drafters. Given the Court's discretionary docket, the cases decided by the Court are precisely those that cannot be decided through the relatively mechanistic processes that Segal and Spaeth (1993, 2002) label the "legal model." We posit that the influence of law is to be found in what we label "jurisprudential regimes," which we define as "a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area" (Richards & Kritzer 2002:308). The manifestation of jurisprudential regimes appears in the way that specific variables influence the justices' decisions. We propose that the way to test for the presence of regimes is to look for changes in how variables influence justices in a particular jurisprudential area.
In our earlier article, we tested this theory by examining Supreme Court decisions in the area of free expression. We hypothesized that the 1972 companion cases Chicago Police Department v. Mosley (408 U.S. 92) and Grayned v. Rockford (408 U.S. 104) demarcated a regime change that is reflected in a central distinction between regulation that is content-neutral and regulation that is content-based. Our statistical analysis provided strong support for our theory as applied in this area of Supreme Court jurisprudence. A central question we left for future research is whether the pattern we found for free expression cases can be found for other jurisprudential areas. In this research note, we extend our analysis to the Supreme Court's decisionmaking concerning the Establishment Clause.
Establishment Clause Jurisprudence
Modern Establishment Clause jurisprudence dates from Everson v. Board of Education (330 U.S. 1, 1947) when the Supreme Court, in a case involving reimbursing parents of schoolchildren for the costs of transportation to school even if the school involved was a parochial school, extended, by incorporation through the Fourteenth Amendment, the Establishment Clause strictures on Congress to the states. In Everson, Justice Black, even while upholding the aid involved in the case using a "child benefit" argument, enunciated what became known as the "no aid" test reflecting a "wall of separation between Church and State" (Levy 1994:152-54). Over the next fifteen years, the Court decided two Establishment Clause cases dealing with voluntary religious instruction during school hours, first striking down programs held in public school buildings (McCollum v. Board of Education, 333 U.S. 203, 1948) and then upholding off-premises programs using so-called released time arrangements (Zorach v. Clauson, 343 U.S. 306, 1952). In a set of three cases (McGowan v. Maryland, 366 U.S. 420, 1961; Two Guys v. McGinley, 366 U.S. 582, 1961; and Gallagher v. Crown Kosher Supermarket, 366 U.S. 617, 1961), the Court dealt with state laws forbidding various kinds of commercial activities on Sunday (so-called blue laws), with the Court rejecting the challenges to these laws in all the three cases.
The school prayer cases in 1962 (Engel v. …