The Corner

Who Supports Free Speech?

Eugene Volokh has tentatively updated his ranking of Supreme Court justices’ support for free speech. According to Eugene, the most pro-speech jurist on the Court is Justice Kennedy, with a 39 rating, followed by Justices Souter and Thomas, who are essentially tied at 32. The least speech-protective on the Court is Justice Breyer at 20.5, but the Chief Justice and Justice O’Connor are not far ahead of him at 21.17 and 21.5 respectively.

Interestingly enough, the average score of Republican appointees to the Court (28.64) is significantly higher than the average score of Democratic appointees (24.5). When the Justices are divided in their traditional right-left camps, the scores are a virtual dead heat: 27.76 for the five “conservatives,” 27.67 for the four liberals. Remove perennial swing vote Justice O’Connor, however, and the “conservative” bloc’s score is a higher 29.33. So much for conservatives and Republican judges being so much less protective of speech and expression.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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