Bench Memos

Speech Coding

As I’ve made clear before, I’m very skeptical that political scientists can generate anything of value by coding the votes of Supreme Court justices in particular cases and spewing out statistics. A new study, reported in Adam Liptak’s column in yesterday’s New York Times, reinforces my skepticism.

The study, led by law professor Lee Epstein, undertakes to explore “in-group bias” on free-speech claims by compiling data on whether a justice is more supportive of a free-speech claim when the speaker shares the justice’s perceived ideology. Liptak highlights one supposed finding—that Justice Scalia “voted in favor of conservative speakers 65 percent of the time and liberal ones [only] 21 percent.”

As I see it, there are at least two basic flaws in the study:

First, as law professor Erwin Chemerinsky suggests near the end of the article—when he says that “the Roberts court is very pro-speech except when the institutional interests of the government are at issue”—there may be factors other than speaker-favoritism or speaker-hostility in a large category of the cases, and those factors may have a very large disparate impact one way or the other in those cases.

Epstein’s seeming blindness to this possibility is reflected in the cases she uses to frame her inquiry:

[W]e posit that Supreme Court Justices are opportunistic supporters of the First Amendment. On this account, conservative Justices are more inclined to sympathize with a pro-life advocate’s complaint about restrictions near abortion clinics than a student’s claim of First Amendment protection to raise a ‘Bong Hits 4 Jesus’ banner (and liberal Justices, the reverse).

When I first read this, my immediate reaction was: How strange to seem to put on the same level the First Amendment claim of a citizen in public and the right of a high-school student taking part in a school-supervised event.

Second, Epstein’s measure of whether a justice has a statistically significant gap between votes for conservative speakers and votes for liberal speakers presupposes that the neutral justice would vote equally for the two sets of speakers. But that presupposition ignores the possibility that the claims of liberal speakers might disproportionately arise in less meritorious cases (sleeping as speech, anyone?) than those of conservative speakers. (Or vice versa, of course.)

It’s conceivable, for example, that there are many more appellate rulings by two or three liberal judges who are hostile to conservative speech claims (or to the realms—e.g., religion, abortion—in which they often arise) than there are by conservative judges who are hostile to liberal speech claims. If that’s the case, the ideal justice would end up voting more for conservative speakers. (Various other factors could also produce an imbalance.) 

In short, while Epstein can compare the vote pattern of one justice to another, she has no basis for saying that one justice’s gap between votes for conservative speakers and votes for liberal speakers is “statistically significant” and that another justice’s gap (or lack of gap) isn’t, as she has no idea what the proper gap should be.

One other observation: When a justice embraces a principle in a case involving a speaker of one ideology, the justice is committing to apply that principle in cases involving speakers of other ideologies. Further, when a Court majority embraces such a principle, it is obligating lower courts to apply that principle to all speakers. Any good justice recognizes this, of course, and will test the proposed principle against his political biases in order to make sure that it is sound. So unless there is something about the principle that makes it more likely to be invoked by speakers of one ideology, or unless there is no discernible principle set forth, I don’t see why a justice would be tempted to decide a case based on the ideology of the particular litigant.


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