Academic journal article The William and Mary Bill of Rights Journal

Empiricism, Religion, and Judicial Decision-Making

Academic journal article The William and Mary Bill of Rights Journal

Empiricism, Religion, and Judicial Decision-Making

Article excerpt

Most people would acknowledge that religious orientation often influences an individual' s political values or preferences. Members of evangelical Protestant denominations, for example, are more likely to be conservative Republicans than liberal Democrats. Empirical studies in political science reinforce this common sense view.1

But what about judicial decision-making? Do judges' religious orientations influence their votes or decisions when resolving judicial disputes? To me, the answer to this question is obvious: yes. To me, this is common sense. But for many, this assertion is controversial. It challenges basic assumptions about the rule of law and the independence of the judiciary.2

Many lawyers, judges, and law professors would insist that neither a judge's political preferences, in general, nor a judge's religious affiliation, more specifically, should affect decision-making. Any such influence would corrupt the judicial process. Judging should be neutral and apolitical. In other words, judges, including United States Supreme Court Justices, should decide cases in accordance with judicial precedents and legal doctrines, not because of political or religious values. Most political scientists, of course, scoff at this internal view of adjudication. They subscribe instead to an external view: at least at the Supreme Court, Justices vote their political preferences. In the words of Jeffrey A. Segal and Harold J. Spaeth, the leading proponents ofthe so-called attitudinal model: "Simply put, [William] Rehnquist votes the way he does because he is extremely conservative; [Thurgood] Marshall voted the way he did because he is extremely liberal."3

Recently, an incongruous clash between the legal (internal) and the political science (external) views of judicial decision-making shadowed the ill-fated Supreme Court nomination of Harriet Miers. On the one hand, the Bush administration trumpeted Miers' s commitment to judicial restraint, to interpreting the Constitution faithfully, and to following the rule of law. Of course, every Supreme Court nominee must be depicted similarly. When would any administration nominate an individual and then declare, "She will ignore the law and impose her personal preferences on the rest of the country!"? Yet, President Bush also emphasized Miers' s religious affiliation, as if it were a credential qualifying her to be a Supreme Court Justice. Indeed, many conservatives applauded Miers' s religiosity - and her more specific religious commitments-while many liberals worried about the same.4 But why would Miers' s religious orientation matter at all if Supreme Court decision-making were neutral and apolitical? Didn't conservatives and liberals both stress Miers's religiosity exactly because they hoped, or feared, that her religious views would influence her interpretations of legal texts, particularly the Constitution?

In this Essay, I will prioritize neither the external nor internal understandings of judicial decision-making. Indeed, I have elsewhere argued that, particularly at the Supreme Court level, both approaches are valid and can be harmonized. They are not necessarily antithetical.5 Nonetheless, I will argue that law professors should pay more attention to empirical studies showing that a judge's religious orientation influences decision-making. To be sure, then, I argue from one side of the law-political-sciencedivide in this particular Essay, but not because the other side is wrong. Rather, I argue from the political science side exactly because law professors so often seem to disregard it. Of course, this disregard can be partly explained by disciplinary boundaries: law professors primarily read legal scholarship, while political scientists primarily read political science scholarship. Even so, each side - the law professors and the political scientists - would profit from listening to what the other is saying.

Given the context of this Essay - addressed to an authence mostly of law professors - I do not need to advocate for the acceptance of the internal or legal view of judicial decision-making. …

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