It pained him, he has said, when he voted to strike down a law making flag burning a crime. “If it was up to me, if I were king,” he said, “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.” But the First Amendment stopped him.
That is a powerful example of constitutional principles overcoming personal preferences. But it turns out to be an outlier. In cases raising First Amendment claims, a new study found, Justice Scalia voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones. In 161 cases from 1986, when he joined the court, to 2011, he voted in favor of conservative speakers 65 percent of the time and liberal ones 21 percent.
He is not alone. “While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”
Social science calls this kind of thing “in-group bias.” The impact of such bias on judicial behavior has not been explored in much detail, though earlier studies have found that female appeals court judges are more likely to vote for plaintiffs in sexual harassment and sex discrimination suits.
Lee Epstein, a political scientist and law professor who conducted the new study with two colleagues, said it showed the justices to be “opportunistic free speech advocates.”
The findings are a twist on the comment by Justice Oliver Wendell Holmes Jr. that the First Amendment protects “freedom for the thought that we hate.” On the Supreme Court, the First Amendment appears to protect freedom for the thought of people we like.
“Though the results are consistent with a long line of research in the social sciences, I still find them stunning — shocking, really,” Professor Epstein said.
The study considered 4,519 votes in 516 cases from 1953 to 2011.
It was conducted by Professor Epstein, who is about to join the faculty at Washington University in St. Louis; Christopher M. Parker, a political scientist at Centenary College of Louisiana; and Jeffrey A. Segal, a political scientist at Stony Brook University.
There may be quibbles about how they coded individual votes. But it was seldom difficult to tell which side was invoking the First Amendment. Nor is it usually hard to assign an ideological direction to particular speakers or positions.
Disputes at the margins will, in any event, be overwhelmed by the size of the gaps in many justices’ support for free speech.
The largest one, at least among members of the Supreme Court who cast more than 100 votes in free speech cases since 1953, belongs to Justice Scalia. Justice Clarence Thomas is not far behind. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have not cast enough votes for a reliable appraisal, but the preliminary data show a similarly significant preference for conservative speakers.
Justice Anthony M. Kennedy, the current court’s most reliable free speech vote, favored conservative speakers by a smaller but still significant margin.
The Roberts court’s more liberal members “present a more complex story,” the study found. All supported free expression more often when the speaker was liberal, but the results were statistically significant only for Justice John Paul Stevens, who retired in 2010.
In the case of Justice Stephen G. Breyer, the difference was negligible. And it is too soon to say anything empirically meaningful about Justices Sonia Sotomayor and Elena Kagan.
There are many ways to think about the Supreme Court’s free speech cases, of course. The new study is important, said Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, “because it offers an explanation for justices’ behavior in First Amendment cases and shows how much justices’ ideology influences the speech they are willing to protect.”
But he added that it was possible to sort votes in other ways, too. “For example,” he said, “the Roberts court is very pro-speech except when the institutional interests of the government are at issue.”
The court has, he said, protected hateful speech at military funerals, allowed the sale of violent video games to minors and struck down campaign finance laws. But it ruled against a government whistle-blower, a student expressing a pro-drug message, a prisoner and a human-rights activist.
Justice Scalia was in the majority every time.
Original Article
Source: nytimes.com/
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