Academic journal article Brigham Young University Law Review

Religion in Judicial Decision-Making: An Empirical Analysis

Academic journal article Brigham Young University Law Review

Religion in Judicial Decision-Making: An Empirical Analysis

Article excerpt

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Empirical studies of judicial behavior are becoming increasingly common and sophisticated.1 These studies typically draw upon large databases of opinions and employ quantitative analytic techniques in an attempt to measure the influence of various factors in judicial decision-making.2 A focus of particular attention in many of these studies is the role played by political ideology. For example, cass sunstein and several colleagues examine this issue at length in a 2006 book aptly entitled Are Judges Political?3 Like many other scholars, Sunstein and his coauthors find that political ideology does indeed have an effect on judicial decisions - at least in some cases, and at least to some degree.4

Other empirical studies have concentrated their attention on the influence of ideology in specific doctrinal areas. Gregory Sisk and Michael Heise have published a series of articles focusing on religious liberty cases in the federal courts and have reported a range of results. while Sisk and Heise find that political ideology does not play a significant explanatory role in Free Exercise clause cases,5 they find that "[t]he powerful role of political factors . . . appears undeniable and substantial" in Establishment Clause cases.6 Similarly, in the context of education, Sisk and Heise conclude that "Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases."7

There is thus a significant body of existing scholarly literature exploring the influence of ideology on judicial decision-making in general and on religion cases in particular. The present Article makes a novel contribution to that literature by exploring a related but distinct issue. Rather than analyzing religion as a category of cases that is subject to ideological influence, we focus on religion as a category of ideology that has the potential to exert its own influence.

Several key elements distinguish our approach. First, we seek to measure the role of religion in a broad range of cases in which various forms of ideological influence might be expected to manifest themselves. In other words, we do not limit our examination of religious influence to cases that present religious liberty issues. Second, whereas some studies have included religion among other variables when examining the role of political ideology in decision-making,8 our emphasis is on the role of religion as such. We accordingly offer a much more detailed discussion of the relationship between religious identification and outcomes, and the ways in which this relationship may differ with respect to various religious denominations and traditions. Third, rather than looking at the independent effects of different ideological influences, we employ more complex econometric techniques to understand how political ideology measured several different ways may interact with religious ideology in influencing voting behavior in specific types of cases. We therefore offer more textured results of the complex relationships among political ideology, religious identification, and different substantive areas of the law. We are able to say more not only about the interactions between political ideology and religion but about how they operate differently in different substantive contexts, such as cases in which fundamental moral values are at issue. Finally, while most previous studies have employed comparison of means or regression with only main effects, we marshal more sophisticated econometric and visual methodologies to analyze and understand the empirical patterns in the data. we are therefore able to provide more nuanced and (hopefully) more transparent insight into the nature of the effects of political ideology and religion on voting behavior of judges.

The Article is organized as follows. Part i discusses the motivation for studying the influence of religion on judicial decision-making. …

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