The Volokh Conspiracy

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Why did the judge announce his "religious inclinations"?


Today the Seventh Circuit decided a case about Northwestern University's decision to cease dealings with a campus rabbi after several underage drinking incidents. The opinion is by Judge Posner, so it is short, interesting, and starts with links to extraneous material on Wikipedia and Youtube. (Thanks to Chaim Saiman for the link.)

It also contains a strange concurrence by Judge Bauer, which reads in its entirety:

I cheerfully concur in this enlightening opinion. The background and various nuances of the religious groups discussed, or alluded to, are not taken from the record of the case but are both enlightening and, I confess, entertaining. Since the result meets my legal and religious inclinations, I have no reason not to endorse the dissertation and ruling and therefore I do.

This is not the first time Judge Bauer has written such a concurrence. Consider this one (pointed out to me on Twitter by Joel Flaxman):

I join the opinion insofar as it affirms the grant of summary judgment to the defendants. But as Judge Posner points out, many lawyers decided against medical school because of lack of interest in the clinical aspects of medicine or a deeper interest in the less scientific aspects of law. I was one of those who chose law as opposed to medicine.

I think the opinion made the necessary legal point when it said that the record shows that summary judgment was clearly the right decision. That's where I would stop.

So I get the general idea that the more recent concurrence is meant to contrast with the previous one, with Judge Bauer explaining why this time he's okay with a tangential discussion in a Posner opinion when he wasn't before. But I still can't figure out exactly what Judge Bauer means by saying "the result meets my legal and religious inclinations." Nor am I really sure why those religious inclinations—as distinct from his legal inclinations—ought to decide whether he joins an opinion in full.

Suggestions welcome.