Gregory C. Sisk & Michael Heise
In our ongoing empirical examination of religious liberty decisions in the federal courts, extended now into a third decade, we find the persistence of ideological influence in Establishment Clause decisions for the period of 2006–2015. Because a non-partisan judiciary is essential to preserve the rule of law, we should sound the alarm when partisan influences appear to be weighting the outcome.
At the same time, one might take comfort in a systematic narrowing of the partisan gap in this most recent ten-year period for our study. For 1996–2005, we had found an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. By this 2006–2015 period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.
Moreover, a Supreme Court precedent variable was the single most significant, robust, and powerful influence on the outcome. Thus, our findings suggest that legal controls may meaningfully confine subjective discretion and reduce the influence of extra-legal factors in federal court decision-making.