At the Supreme Court, your freedom of speech can depend on whether the justices like what you’re saying.
A new study from the University of Southern California School of Law, first reported on by The New York Times, shows that most of the conservative justices are less likely than their more liberal counterparts to uphold free speech claims if they come from liberal sources or express liberal sentiments than vice-versa. While the more liberal-leaning justices are more likely to support a free speech claim from a liberal source, they are also more likely than most of their conservative colleagues to uphold free speech claims when they’re made by a conservative one.
“While 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 ideological grouping of the speaker, and not solely an underlying taste for (or against) the First Amendment,” the study concludes. “The four most conservative Justices are significantly more likely to support the free expression claim when the speaker is conservative (or espousing a conservative message) than when the speaker is liberal.”
The study includes retired Justices Sandra Day O’Connor, David Souter and john Paul Stevens, but does not include Sonia Sotomayor or Elena Kagan “because they cast too few votes for meaningful analysis and because of a lack of variation in the speakers.” The two more moderate justices, O’Connor and Kennedy, were the most likely among their conservative peers to side with a liberal speaker.
When Sotomayor was nominated to the bench, conservatives vilified her as someone who would adhere to President Barack Obama’s standard that a good judge
should have “that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” They contrasted her with Chief Justice John Roberts, who characterized a judge’s role
as an impartial umpire who merely calls “balls and strikes.”
As it turns out, when it comes to free speech matters and the Roberts court, who’s pitching matters a whole lot. Lucky thing that at least some of the justices are able to empathize with the other side.