Justices shows bias in free speech votes

From New York Times  article on May 5, 2014 about the relative effect of ideology on Supreme Court Justices' votes on free speech cases:

" . . .  In cases raising First Amendment claims, a new study found, Justice [Antonin] 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."

 But, the article points out, he is not alone.    Liberal justices are over all more supportive of free speech claims than conservatives justices, but their ideological preferences are also reflected in skewed voting patterns, just not as pronounced as the more conservative justices. 

The study was conducted by several academic economists, one of whom Professor Lee Epstein of Washington University of St. Louis, said he found the results stunning, even "shocking."

"The study considered 4,519 votes in 516 cases from 1953 to 2011. . . . 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. . . . 

"The largest [gap in a justice's votes], 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."

Erwin Chemerinsky, dean of the University of California-Irvine Law School called the new study important, "“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 also added that it is possible to sort the votes in other ways too, not just according to conservative/liberal ideology.   “For example, the Roberts court is very pro-speech except when the institutional interests of the government are at issue.”

Whatever the measure, it does seem to be objective evidence of patterns of how justices will vote on cases that concern one of our most basic rights.    Which underscores my long-held view:   that the appointment of Supreme Court Justices has the most lasting effect of anything a president does while in office.

Ralph

Here is a breakdown of the way each justices has voted on free speech cases, depending on whether the speaker (or the cause) was conservative or liberal, C=conservative, L=liberal:

Scalia:          C 65%, L 21%

Thomas:     C 63%, L 23%
Alito:            C 47%  L 5%

Roberts       C 62%,  L 18%

Kennedy      C 64%  L 41%

O'Connor     C 51%  L  45%

Breyer          C 39%  L 40%

Souter          C 51%  L 60%

Ginsburg      C 40%   L 52%

Stevens         C  48%  L 61%