Published on: Wednesday, August 15, 2012
A 2012 empirical study co-authored by School of Law Prof. Greg Sisk on Establishment Clause jurisprudence was recently cited in the dissenting opinion of one of most influential federal appellate court judges in the country.
Judge Richard Posner’s dissenting opinion in the U.S. 7th Circuit Court of Appeals 7-3 en banc decision of Doe v. Elmbrook School District called on the Supreme Court to provide more concrete legal framework for the lower courts on Establishment Clause jurisprudence or else risk that judges will “inevitably fall back on their priors, that is, on beliefs based on personality, upbringing, conviction, experience, emotions, and so forth that people bring to a question they can’t answer by the methods of logic and science or some other objective method.” Or in other words, Posner wrote, when not given solid jurisprudential ground to stand on in Establishment Clause cases, lower court judges will revert to their political background to decide such a case.
Posner’s opinion cited to and drew heavily from the conclusions of the study Sisk coauthored with Cornell Law Prof. Michael Heise entitled “Ideology ‘All The Way Down,’ an Empirical Study of Establishment Clause Decisions in the Federal Courts.”
Appointments influenced by ‘Devotional Divide’
As a part of Sisk and Heise’s ongoing empirical examination of religious liberty decisions in the lower federal courts, the duo evaluated decisions on cases involving Establishment Clause issues from 1996-2005, a period of time when Sisk said the country began to see a more pronounced “God Gap” or “Devotional Divide” in its politics. During these years Sisk said their research and analysis found that whether a judge was appointed by a Republican or Democratic president had a definitive influence on how they ruled in Establishment Clause cases.
According the study’s findings, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a rate of about 57 percent, while the predicted probability of success fell to just more than 25 percent before Republican-appointed judges.
“Thus, an Establishment Clause claimant's chances for success were 2.25 times higher before a judge appointed by a Democratic president than before a judge appointed by a Republican president,” Sisk wrote in an article on the study recently published in the University of Michigan Law Review.
School held graduation in a church
The majority in Doe v. Elmbrook sided with the plaintiffs in ruling the defendant Elmbrook School District (located in Brookfield, Wis.) violated the Establishment Clause of the federal Constitution when it held its graduation ceremonies at Elmbrook Church for a series of years in the 2000s. The en banc review reversed an earlier three-judge panel that ruled in favor of the district. The case was originally brought to federal court in 2009 after the plaintiffs, three current and former students filed a lawsuit against the school district claiming its decision to hold the graduation ceremonies at the church was a constitutional violation.
Sisk says the case may reach the Supreme Court and acknowledges that Posner’s dissent could be influential in the court’s analysis. He believes publication of the articles on the study in the University of Michigan and University of Chicago law reviews played a role in Posner’s citation of the study, which he said shows the impact that such scholarship can eventually have judicial decision making.
“I do think (Posner’s citation to the study) is a testament to the prominence of scholarly work on the part of faculty,” Sisk said. “The publication of the articles in prominent law reviews most likely brought attention to the study in a way it might have not otherwise done had it not been published in such law reviews.”
“What Posner was saying in his dissent is essentially what we found in our study,” Sisk added, “that the Supreme Court’s precedents on how to apply the Establishment Clause is so murky, so convoluted, so subjective, that judges, in particular the lower federal courts, are left without any clear guidance on how to decide these cases.
“And if you are left with nothing, no guide posts, no precedents, no rules to apply how are you going to decide it, many times all they can do is decide a case based on the way they see it, based on their background,” he said. “But what our study says is that it doesn’t have to be that way if the Supreme Court simply provides the framework for these judges to make a decision based on law.”