Monday, July 30, 2012
When the Seventh Circuit issued its en banc decision in Doe v. Elmhurst School District last week, ruling that a public school violated the Establishment Clause by holding commencement in a church, I was on an island in Puget Sound with limited internet access.
I appreciate Marc DeGirolami’s post last week critiquing the decision, with several quotations from the dissents, and kindly noting Judge Posner’s dissent citing to the empirical study that Michael Heise and I have conducted on Establishment Clause decisions in the lower federal courts.
Judge Posner’s dissent rightly calls the Supreme Court to task for its “formless, unanchored, [and] subjective” case law on the Establishment Clause, setting the stage for Supreme Court review in the Elmhurst case.
In our Michigan Law Review article, Ideology “All the Way Down”? An Empirical Study of Establishment Clause Decisions in the Federal Courts, we found that, holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 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 one appointed by a Republican President.
As we stated in the article, this is a most troubling departure from the aspirational ideal of neutral and impartial judging.
And, like Judge Posner, we place a significant share of the blame on the Supreme Court’s Establishment Clause jurisprudence, which we described as an “attractive nuisance for political judging.” When too much room is left for judicial discretion, at least in such a highly contested and politically prominent area of constitutional law as Church and State, judges are likely to end up relying on personal premises, because there is no more objective standard to apply.
The (potentially) good news is that we also found that the Supreme Court’s recalibration of Establishment Clause doctrine (measured by a precedent variable) has made a measurable difference in outcomes in the lower federal court, although it has not (yet) reduced political or ideology disparities among ruling judges in the lower federal courts. Thus, we have some optimism that a continued movement by the Supreme Court away from a subjective xxx to a new jurisprudential regime could arrest the unsavory political influence or at least reduce it.
We’ll all have to stay tuned to what the Supreme Court does next – perhaps in the Elmhurst case itself.