That’s the question posed by researchers at the University of Southern California who, in a recent study, looked at why and how U.S. Supreme Court Justices aligned themselves over the years when it came to ruling on First Amendment claims.
The conclusion: The justices are “opportunistic free speechers.”
What the group found, not surprisingly, was that the justices “doth protest too much” when they claim to judge blindly:
Although liberal justices are (overall) more supportive of free speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the speakers’ ideological grouping, and not solely an underlying taste for (or against) the First Amendment.
Here’s an example (per The Economist):
If the speaker seeking first amendment solace is a pro-lifer rankled by restrictions on protests near abortion clinics, his rights are very likely to be recognised by Justice Clarence Thomas, a conservative, but not by Justice Ruth Bader Ginsburg, a liberal (see Hill v Colorado). And if the speaker is a high-school kid holding up a banner reading “Bong Hits 4 Jesus” on a school trip, you can expect Justice Thomas to harumph while Justice Ginsburg rises to the defend the student’s free-speech rights (see Morse v Frederick). Right-wing justices tend to uphold conservative speakers’ rights and rule against liberal litigants; liberal justices smile on their ideological friends and frown at their foes, too.
And conservatives on the court are far more inclined to bias than their more liberal colleagues, the researchers added, per the chart below.
What ‘s the import of all this? Says The Economist:
If the justices are to live up to their title, they should, more or less, judge blindly. The extent of a citizen’s freedom of speech should not turn on the degree of affinity between his political views and those of a majority of the justices. Church and state cases should not be decided by a vote of five conservative Catholics against three liberal Jews (joined by one liberal Catholic), as we saw in Town of Greece v Galloway last week. Nor should the contraceptive mandate for pious employers in Obamacare stand or fall depending on the religious and ideological makeup of the Supreme Court. Don’t be surprised if the Hobby Lobby and Conestoga Wood cases are decided on apparently ideological lines when that decision comes down in the next few weeks.