Now in Legal Rebels:
Posted May 07, 2014 10:55 am CDT
A study of 516 U.S. Supreme Court cases has found that justices in First Amendment case are more likely to support free speech principles when the speaker or speech has their same ideological leanings.
The study found that Justice Antonin Scalia voted in favor of conservative speakers in free-speech cases 65 percent of the time and in favor of liberal ones 21 percent of the time, the New York Times reports. Among justices who cast votes in more than 100 free-speech cases, he had the largest gap between conservative and liberal support. Justice Clarence Thomas was close behind, showing support for conservative speakers 65 percent of the time and liberals about 23 percent of the time.
Likewise, liberal justices who were studied supported free speech more often when the speaker was liberal, although the gap in support between liberal and conservative speakers was smaller. The results were statistically significant only for retired Justice John Paul Stevens, the Times says. He supported liberal speakers about 63 percent of the time and conservatives about 47 percent of the time.
The study (PDF), which looked at cases decided from 1953 to 2011, did not include results for Justices Elena Kagan and Sonia Sotomayor, the newest justices. It also warns that results for Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. are preliminary.
“Justices are opportunistic free speechers,” the study says. “Just as the in-group bias literature would predict, they are willing to turn back regulation of expression when the expression conforms to their values and uphold it when the expression and their preferences collide.”
The study notes prior findings that support the idea of in-group bias, including findings that female appeals judges are more likely to rule in favor of the mostly female plaintiffs in sex-bias cases, and that white trial judges give lighter sentences to white defendants.
One of the study authors is law professor Lee Epstein, who will join the faculty this year at Washington University in St. Louis. “Though the results are consistent with a long line of research in the social sciences, I still find them stunning—shocking, really,” she told the New York Times.
Epstein posted a summary of the study here (PDF).