Mirror of Justice

Scholarly Impact and Catholic Legal Education (Part Four)

[This is the last in a series of four posts. This post is new this year, adapted from the introductory remarks to our report of the new Scholarly Impact Ranking for 2024.]

Be encouraged, my colleagues in the legal academy. Those long days, weekends, semester breaks, and summers devoted to legal scholarship can make a difference. Believe it. Intelligence, nuanced understanding, critical analysis, and creative resolution matter more, that is true. But don’t belittle the value of basic hard work in building a scholarly profile for any law professor. And that scholarly diligence should pay dividends in multiple ways, perhaps including the scholarly impact of your work by drawing citations from other scholars.

The cynic may reply that hard work simply does not result in greater scholarly visibility, unless the scholar is already at a top ranked law school. The skeptic doubts that greater productivity and higher quality work achieved through longer hours makes any difference in scholarly impact. Legal academia is too hierarchical, and rank positions are too fixed for one person working hard to make a difference, so says our detractor.

I respectfully, but strongly, disagree. To say that it is difficult to move upward should never be mistaken to mean that it is impossible.

There is ample evidence that individual scholarly achievements do matter, both to that individual scholar and to the law faculty on which he or she currently serves―or the law faculty that later recruits that individual for a lateral move. One of the distinct pleasures in conducting our Scholarly Impact Ranking every three years is to see the impact made by law professors at a variety of law schools.

Individual scholarly successes aggregated for a law school’s tenured faculty may also make a substantial difference. Law faculties as a collection of individual scholars can and do change in composition, sometimes dramatically, which then changes the scholarly portrait projected into academia.

When a law school experiences an atypical number of retirements or departures of tenured faculty, followed closely by a greater than usual number of new or lateral hires, the institution has a prime opportunity to build a stronger scholarly profile. We see multiple examples of law faculties that have moved up in the Scholarly Impact Ranking precisely because they have succeeded in making great hires, including lateral hires, that have boosted that school’s impact.

In our 2021 ranking, we reported that the law faculty at Viginia had climbed several positions from #16 in 2018 to arrive in the top 10 and tied for #9 for 2021. This result was not a surprise to careful observers of the legal academy, as Virginia had recruited more than half a dozen highly cited lateral scholars in the recent past. Showing the stability of our ranking, Virginia remains in the top 10 for our 2024 ranking.

For 2024, another law school has made dramatic upward movement into the top 25. In our 2021 ranking, Emory had been ranked at #36. In this 2024 ranking, Emory has moved dramatically up to #18. As with Virginia in 2021, this outcome for Emory is not mysterious. Comparing its tenured faculty roster in 2021, Emory saw double-digit additions and departures before this updated 2024 study. The incoming faculty members―at least half of whom were moving from law schools outside of the top 25 in scholarly impact―have a collective citation mean that is well above the overall mean for the Emory faculty (and more than double the mean for departed or retired faculty). In sum, Emory added citation strength through its faculty hires, which not surprisingly added up to a significant upward move in our Scholarly Impact Ranking.

Onward and upward, Fellow Scholars!

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2024 update to the Scholarly Impact Ranking of law faculties (here), I began a series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education. This is the third of four posts in the series.

The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools.

My third point today is that, as Catholic Christians, we have been called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

For some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day.  For all of us, it means conducting the search for the truth with integrity and dedication.  The search for the truth is hard work — and for Catholic academics that hard work requires scholarly engagement.

Turning again to the words of Ex Corde, for a Catholic university

Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.

Through our work — through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) — we may have a significant influence on the development of the law and of the legal culture.  As my former Dean (and now President) Rob Vischer has written (here), “a fundamental mission of law schools is to advance knowledge and thereby contribute to human flourishing.”  For religiously-affiliated law schools, Vischer says, our mission includes “producing scholarship aimed at bringing a more just world into view.”  And this scholarly mission can resonate with and be integrated into our teaching and collaborative work with students.  To again quote Rob Vischer, we should not neglect “the formative potential of inviting students to be active participants in a law school's scholarly culture.”

On the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work:

By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.

We cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences both within and beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.

What a tremendous privilege!

Scholarly Impact and Catholic Legal Education (Part Two)

Recently, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Three years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  I am revising and re-posting those, as they remain just as salient today, along with a new post of encouragement.  This is the second in the series of four.

The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school.  Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point goes not only to Catholic legal education, but Catholic higher education in general:  Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.

 

Throughout American history — and with increasing tendency today — persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior.  As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.”  See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias:  The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more — due to poorer survey scoring by academic peers — when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc.  The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.

If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged.  By producing excellent and well-written legal research, sharing our legal scholarship with others, and receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.

A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.”  Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.

Tom Mengler — who is President at St. Mary’s University in San Antonio and previously was dean at the University of St. Thomas School of Law and the University of Illinois College of Law — wrote thoughtfully about Monsignor Ellis in a piece published several years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)

Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity —- especially the scholarly mediocrity — of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality * * *.  [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.

* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country.  At most of the major Catholic universities — throughout their academic departments, including within the law schools — scholarship suddenly became a more important focus.

In our Catholic law schools, we are the heirs of Monsignor Ellis’s intellectual legacy.  And the need for a vibrant scholarly culture in Catholic higher education remains as compelling.  As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.

Scholarly Impact and Catholic Legal Education (Part One)

A few days ago, I reported the 2024 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded. The post is here. and the full report is here.

Every three years, I also post to Mirror of Justice a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  Over the next week, I'll repost revised versions of these posts, as they remain just as salient today, and will also a post of encouragement for legal scholars.

Whenever a report or study is published on the scholarly activities of law professors, it is likely to provoke some critical responses questioning whether legal scholarship has any practical value. Someone is likely to argue yet again that law professors spend too much time on scholarly writing at the expense of their teaching responsibilities.

In my view, this suggests a false conflict between scholarship and teaching. We should not view scholarly work and teaching as competing with each other, rather than understanding that the intellectual preparation found in scholarly research and writing is complementary to greater depth in teaching.  As we wrote in our 2018 report on scholarly impact:

Why would students want to learn from the law professor who arrives at the classroom podium only after abandoning rigorous written engagement with legal problems? How can we expect students to be inspired to professional leadership, masterful and dedicated client representation, and principled law reform if their professors do not exemplify the intellectual curiosity, the breadth of thought, and the conscientious inquiry of a legal scholar?

When I am asked, with respect to my own institution, the University of St. Thomas, whether we should continue to strive for scholarly excellence and national scholarly prominence or whether we should devote greater attention to teaching and enhancing professional formation, my answer is an unequivocal “yes!” We as tenured faculty members need to step up and work even harder to achieve excellence in both responsibilities.

Moreover, it bears reminding, even if the teaching and counseling duties of tenured faculty have increased during the academic year, the long, glorious months of summer would remain. At most law schools, few students are in school and few classes are being taught during the summer and those that are taught during summer are rarely taught by full-time faculty. Given that luxury of uninterrupted weeks of work time, most tenured faculty have been given more than ample opportunity to produce one or two major works of scholarship each year.

I want to address today a more pointed question: How important is scholarly impact to a Catholic law school?

For three reasons, I think the scholarly mission of the tenured (and tenure-track) law faculty takes on added importance for the Catholic law school: (1) an intellectually engaged law school culture requires scholarly-engaged law faculty; (2) a scholarly-prominent Catholic law school is a strong witness for the intellectual vibrancy of scholars of faith; and (3) a Catholic law school through the scholarly work of its faculty influences for good the culture in which it is situated.

I’ll say a little more about the first of points below and then follow up with the other two points in separate posts over the next week.

On my first point, a law school that is meaningfully Catholic in character will be grounded in the Catholic intellectual tradition, while giving careful attention to and including faculty who work from other intellectual traditions and scholarly movements. Indeed, one of the signature virtues of the Catholic intellectual tradition is that it is enriched by other traditions as well. A law school cannot be an intellectually vigorous place without faculty who are engaged in the quintessential intellectual activity of scholarly research and writing. One can best convey to students the excitement and meaning of intellectual discourse, along with the satisfaction of applying reason informed by theory to new situations, when one is doing that hard scholarly work oneself.

I recall a law professor from another law school many years ago who referred in casual conversation with me to the “scholarly” faculty at yet another law school (that shall remain unnamed). She characterized them as a genuinely scholarly faculty because, even though no one on that faculty produced much in the way of scholarly publications themselves, the faculty gathered every couple of weeks in the faculty lounge to discuss a recent scholarly article written by someone elsewhere. At the time, I thought how odd it would be to describe the faculty at a school of music as musically engaged, even though none of the faculty wrote music or played instruments, but instead gathered frequently to listen to and discuss music written and played by others.

If we are to bear witness to the Catholic intellectual tradition — and other intellectual disciplines — we must be thinking hard about those matters. And that means writing about them. We all know that a student can listen to a classroom discussion without thinking. And, as we’ve all experienced, especially when trying to read a legal text late in the evening, a person can read without thinking. But no one can write without thinking. Putting pen to paper (literally or figuratively through a keyboard) demands an engagement for which no discussion group, conversation, or attendance at a lecture by someone else can substitute.

By engaging in scholarly writing of our own, we enhance our ability to critically examine the previously published scholarship of others, and we frequently discover the greater persuasiveness of prior scholarly work when we take the time to examine it in our own work. As I often am reminded in doing research, it is very easy to unfairly criticize the scholarly work that someone else has done, only to find when actually engaged with the same issues and materials in doing one’s own work, that the prior researcher did very well with what she had before her. One is rightly skeptical of purported scholars who pontificate on the work of others but have not done the heavy lifting of laboring in that field themselves.

More to come.

Ranking the Scholarly Impact of Law Faculties -- 2024

Every three years, I lead a team at the University of St. Thomas (Minnesota) to study the scholarly citations of thousands of tenured law professors (involving some half-a-million citations) to measure the scholarly impact of American law faculties, that is, whether other scholars are actually relying on their written works of scholarship.  Using the basic methodology pioneered by Professor Brian Leiter at the University of Chicago, we rank approximately the top third of law schools.

With the full study available here, I am pasting the Top 50 below.  Five Catholic law schools appear in or near the Top 50-- Georgetown, the University of St. Thomas, the University of San Diego, Notre Dame, and the University of San Francisco.

In the coming days, I'll renew my thoughts about the importance/value of scholarship at Catholic law schools, which again I share every three years when this study is complete.

Rank	Law School	Weighted Score
1	Yale	1255
2	Chicago	1120
3	Harvard	1016
4	NYU	898
5	Columbia	813
6	Cal-Berkeley	747
7	Pennsylvania	739
8	Stanford	728
9	Vanderbilt	695
10	Virginia	669
11	Duke	636
11	UCLA	636
13	Cornell	612
14	Michigan	571
15	Georgetown	562
16	Northwestern	552
17	George Washington	507
18	Emory	474
18	Cal-Davis	470
20	Fordham	464
20	Texas	464
22	Cal-Irvine	439
23	William & Mary	428
23	Minnesota	427
23	U. St. Thomas	425
26	USC	408
27	Boston University	404
28	Washington University	387
29	Brooklyn	374
30	North Carolina	369
30	Florida	366
30	Utah	364
30	George Mason	361
34	Cardozo	355
34	Ohio State	353
34	U. San Diego	349
34	Florida State	346
38	Illinois	344
38	Notre Dame	338
38	Arizona	332
41	Colorado	328
42	BYU	316
43	Case Western	306
43	Cal-SF	304
43	Kansas	301
43	Arizona State	299
47	U. San Francisco	293
47	Georgia	291
47	Temple	289
47	Washington & Lee	287
47	Chicago-Kent	282

Mirror of Justice -- Twenty Years Ago

As Rick Garnett said in his post, we've reached the age of 20 for the Mirror of Justice. The anniversary provoked me to look back on some of the early messages from that period and reminded me that the hottest topic and source of strongest rhetoric of disagreement on posts in the initial months involved the forthcoming 2004 presidential election. Catholics troubled by the strong pro-abortion advocacy of Democratic Senator John Kerry argued he was disqualified from Catholic support. Others were troubled about the ongoing war in Iraq and contended that Catholics should withdraw support from President Bush based on the debacle about never-found weapons of mass destruction while thousands of innocent lives were lost.

In sum, as one writer put it to Mirror of Justice posters at the time, people were feeling rather "anguished" about the upcoming presidential election. Oh, how things change!

Approaching Equilibrium in Free Exercise of Religion Decisions in the Federal Courts

This is the second of three postings about the empirical studies that Michael Heise and I have conducted on religious liberty decisions in the lower federal courts. Today, I am sharing our findings about our most recent study of Free Exercise of Religion decisions. We have good news to share here, which is that equilibrium or equality is within reach for Free Exercise claimants from different religious backgrounds.

This article is titled Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, was published in the Arizona Law Review, and is available in full (link here).

Our dataset for 2006-2015 religious liberty decisions consisted of 2,847 judicial participations (773 by district court judges and 2,074 by court of appeals judges). This dataset of these religious liberty decisions is unprecedented in its size and its inclusive­ness of judicial actors from multiple Article III courts. In addition to including multiple decisions from every one of the 13 federal courts of appeals, our dataset includes decisions from district judges in 90 of the 94 federal districts.

Before multivariate regression analysis, the religious liberty claim was favorably received by the ruling judge 37.7% of the time. In the 30 years of decisions in our studies, this success rate has remained remarkably stable, consistently falling within a two percen­tage point band. For the 1986–1995 period, that positive ruling rate was 35.6%; for 1996–2005, it was 35.5%.

The chart accompanying this post sets out the religious identities represented in this study, by percentage of observations.

Unfortunately, as scholars and observers have long noted, America’s history of religious tolerance has been blemished by inequality and intolerance, with certain religions favored by political and judicial recognition, while other religions have been disadvantaged and left unprotected by the courts against majoritarian demands. Indeed, in our prior study for 1996–2005—during the period leading up to and following 9/11—we found that Muslims were experiencing a dramatic deficit of success in free exercise claims, succeeding at only about half the rate of other religious claimants.

But the past need not predict the future. For the most recent period we studied, 2006–2015, things appear to be moving toward that aspirational point where claimants from most religious backgrounds across the spectrum of religious experience in American life suffer no systematic disadvantage in seeking accommodations for religious exercise. With shrinking exceptions, judges of the federal courts of appeals and district courts appear to be adjudicating constitutional and statutory religious exercise claims with even-handed impartiality. Claims by Catholics, Mainline Protestants, Baptists, Seventh-day Adven­tists, Mormons, Muslims, and others did not achieve success or experience failure at a significantly different rate than for claims of the same type made by others.

The Brittanica Dictionary defines “equilibrium” as “a state in which opposing forces or actions are balanced so that one is not stronger or greater than the other.” The followers of one religion should neither enjoy a greater probability to prevail nor suffer a disadvantage in seeking state recognition of religious practices, when such unequal results are based on religious identity of the follower or the cultural dominance of that religious tradition. If religious liberty in America is to be genuinely available in practice, as well as in theory, it must mean that every person of every faith may expect equal consideration when presenting a demand for accommodation of religious exercise against governmental restrictions.

What prompted religious liberty adjudication to move in this encouraging direction? As with last week’s posting on Establishment Clause decisions, we find that Supreme Court clarification of the law appears to have made a substantial difference.

For example, the Supreme Court’s 2006 decision in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), provided the tools for loosening the grip of stereotypes. This decision held that the government could not preclude a religious sect from sacramental use of a hallucinogenic substance by the “mere invocation” of a general prohibition on nonmedical use of narcotics. By requiring an individualized case-specific scrutiny that focuses on the religious claimant’s particular attributes, the O Centro decision encourages the judge to abandon stereotypical generalizations and engage in a differentiated and individualized treatment of each claim.”

In this way, a court instead may better appreciate the character of the claimant’s religious practice and the nature of the requested accommodation. To undertake that examination, the judge should learn about each claimant’s faith perspective objectively and rigorously, but also sympathetically, thereby substituting new information and understanding for implicit beliefs. See also Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (directing courts to evaluate on whether the government has substantially burdened a particular religious exercise rather than other forms of religious exercise in which the claimant might engage, thus requiring courts to focus on the specific nature of a particular religious exercise).

Additional evidence in our study supports this analysis. The independent variables in our study that do achieve statistical significance strongly and comprehensively—Case-Type variables—are precisely those that should correlate with the outcome of religious liberty disputes. Not every free exercise or related claim is positioned to be positively affirmed in every context. And we find that the likelihood of success does vary by case category. Indeed, of our 12 Case-Type variables, 8 are significant, namely Public Secondary and Higher Education, Private Education, Religious Meetings, Religious Expression, Zoning, Prisoner, Exemption from Anti-Discrimination Laws, and Criminal Defense.

The remarkably comprehensive and robust signifi­cance of our Case-Type variables dovetails with doctrine to advance the equilibrium of religious liberty for diverse religions. Rather than the case turning on noncontextual and perhaps implicitly biased views of a particular religious claim, the contextual approach demands a deeper dive into the nature of the religious claim and a fine-tuned assessment of the government’s claim of an overriding public interest. We would expect, then, that some contexts are more likely to pose particularly troubling invasions of the government into private religious behavior, while others are more likely to implicate a compelling public interest in preventing harmful behavior.

Although the promised land may be in sight, we are not yet there. Significant advantages (for Native Americans and Budd­hists) and disadvantages (for Orthodox Jews and Rasta_­farians) for a small number of claimants demonstrate that work remains to be done. And the troubling indication that judges may look more favorably on claims by coreligionists belies any pretense that impartial adjudication has been fully achieved.

Through the rise of cultural tolerance, a deepening understanding of the sincere beliefs of others, and conscientious judicial attention to religious claims and countering implicit bias, the courts may be moving us closer to that ideal of robust and widely enjoyed religious liberty.

Empirical study of religious liberty decision in the federal courts: The Establishment Clause cases

One of the scholarly hats that I wear is that of an empirical researcher on religious liberty decisions in the lower federal courts. I have been greatly blessed over the past couple of decades to collaborate with Michael Heise of Cornell on this work. We have now published our most recent findings through three successive decades of religious liberty decisions, in three journal articles that have been published within the past several months.

I’ve been encouraged to share some of what we’ve found here on Mirror of Justice. I’m planning to post separately on each of our three works in the coming week or so.

I begin today with our study of Establishment clause decisions in the federal district courts and courts of appeals from 2006 through 2015. This article is titled Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, was published in the Arizona State Law Journal, and is available in full (link here).

What has been most distinctive – and not in a good way – about our observations of Establishment Clause cases over multiple decades has been the sometimes dramatic and still persistent partisan divide among the judges, based on the party of the appointing president.

Now in our other empirical work and based on my study of the literature, let me emphasize that I do not share the view that the evidence supports a general critique of the federal courts on partisan grounds. To the contrary, only a few types of cases have shown both a statistically significant and a substantial size discrepancy in how judges appointed by presidents of different parties resolve disputes.

Indeed, we begin our most recent article by noting that the last wall of the judiciary held during the partisan political storm following the 2020 presidential election. In the federal courts, Donald Trump faced defeat after defeat, dozens of times. An impartial and non-partisan federal judiciary was having none of his unsupported claims of election fraud or his extreme requests to disenfranchise millions of voters. Judges appointed by the presidents of his own party, including judges appointed by President Trump himself, rejected in scathing terms the claims that he and his supporters raised.

As we say in the article, however, now having been reminded that a non-partisan judiciary is essential to preserve the rule of law, we should be all the more distressed when we observe federal judges returning to partisan corners on another matter.

In our most recent iteration of our empirical examination of religious liberty decisions in the lower federal courts, we found persisting evidence of a partisan divide. Holding all other variables constant, Democratic-appointed judges were predicted to uphold claims challenging government conduct on Establishment Clause grounds at a 45.1 percent rate, while the predicted probability of success fell to 33.0 percent before Republican-appointed judges.

Importantly, however, this was a substantial narrowing of the partisan gap from our study of the preceding period of 1996-2005, in which we had found that a Republican-appointed judge would accept an Establishment Clause claim only 25.4 percent of the time, while a Democratic-appointed judge would accept the claim at the significantly higher rate of 57.3 percent. Thus, for the earlier period of study, 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 the next ten-year period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.

So what accounts for this? We have suggested that the source of a partisan divide may be found in the absence of constraining legal doctrine that leaves judges without clear guideposts in resolving Establishment Clause disputes. But the Supreme Court has been modifying that doctrine in recent decades. And those stronger legal controls are making a difference. When the Supreme Court sets forth clearer rules for Establishment Clause disputes with less ambiguous standards, greater stability in decisions with less subjectivity followed.

For our most recent study of the 2006-2015 period, we explored the influence of the Supreme Court’s decision in Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2012). In Winn, the Supreme Court employed a narrowed test for judicial standing to deflect Establishment Clause challenges by a group of taxpayers against a state program allowing tax credits for contributions to qualifying non-profit organizations including religiously-affiliated schools. Observing that any funds received by the religious schools was because of the decisions of a taxpayer to contribute to the organization, the Court majority ruled that the case involved private action rather than state activity

The Supreme Court’s 2011 decision in Winn decision narrowed standing and thus reduced the occasions for a judicial finding of an Establishment Clause violation. Winn is a landmark decision that meaningfully redirects Establishment Clause juris­prudence.

And, looking at the lower federal courts in deciding Establishment Clause challenges, our variable for Winn was significant at the 99 percent confidence level and substantial in effect. For the 2006-2015 period, holding all other independent variables constant in our Party-of-Appointing-President model, our best estimate was that the success rate for Establishment Clause claimants fell from 59.7 percent to 15.8 percent after the Supreme Court decided Winn. The impact was quite dramatic, a decline of more than 40 points or nearly three-quarters.

In sum, the Supreme Court’s change of doctrinal course in Winn appears likewise to have changed the outcome course of Establishment Clause decisions in the lower federal courts. No other factor that we have explored has produced such a marked change in predicted like­lihood. This single precedent may have been a game-changer for Establishment Clause decisions in the lower federal courts.

In other words, yes, the law does matter.

Next post will be on the Free Exercise cases, where the news is good, although that must be tempered with fears of changes on the horizon.

"The Rise of the Nones"

I had the distinct pleasure of traveling to St. John's University School of Law a couple of weeks ago to participate in the spring symposium sponsored by the Center for Law & Religion, the St. John's Law Review, and the Journal of Catholic Legal Studies. The topic was the role of the so-called "Nones," that is, those without a religious affiliation, in religious liberty cases and debates.

Together with Michael Heise at Cornell, our empirical study of religious liberty decisions, including decisions by judges without a religious affiliation on Establishment Clause cases, will later be published in the St. John's Law Review (for which an earlier draft is now available on SSRN here.)

For those who could not attend and are interested, the Center at St. John's has now published a podcast with Mark Movsesian, Steve Collis, and I. You can access it below:

https://lawandreligionforum.org/2023/04/04/legal-spirits-048-the-rise-of-the-nones-and-american-law/

Cross-Post From Pioneer Press: When They Talk About Abortion, They’re Talking About Me

Today’s Sunday edition of the St. Paul Pi0neer Press includes a guest editorial I wrote, with a less commonly heard narrative on the subject of abortion:

https://www.twincities.com/2022/05/22/gregory-sisk-when-they-talk-about-abortion-theyre-talking-about-me/