Sisk on Judicial Decisionmaking

Over at the Empirical Legal Studies blog, our own Greg Sisk is posting about "neglected variables in empirical research on judicial decisionmaking."  (See also here and here.)  Of particular interest will be Greg's discussion of "religion":

At this point, I turn more directly to shameless self-promotion, as religion as a variable has been and continues to be the focus of my current empirical interest in judicial decisionmaking. . . .

In my collaborative work with Michael Heise and Andrew Morriss, we focused upon various religion-oriented variables in studying religious liberty decisions.  Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking:  An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004).  During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty.  Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue.  Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role.  Yet much less has been written about whether judges’ religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously.

In our comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking became abundantly clear.  Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.  Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we concluded that researchers should not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense.

Of course, if religious variables were to have an influence, one would expect it to emerge in cases that involve religious liberty.  Is there justification for studying religious variables in the context of other research questions?  Only time – and experimentation – will tell.