Scalia's free speech hypocrisy: What a new study proves about his bias

"Judges are human, and they fall prey to the same kind of bias" as the rest of us, leading expert tells Salon

Published May 15, 2014 12:30PM (EDT)

Supreme Court Justices Antonin Scalia, John Roberts                                   (Reuters/Brendan McDermid/AP/Larry Downing/photo collage by Salon)
Supreme Court Justices Antonin Scalia, John Roberts (Reuters/Brendan McDermid/AP/Larry Downing/photo collage by Salon)

According to a recent article in the New York Times, the Supreme Court — like nearly every other major institution of American governance — is in serious trouble.

After a string of high-profile decisions that split cleanly along partisan lines, the court's reputation for honesty, integrity and a high-minded remove from the ugly world of partisan politics is eroding, with consequences that could extend far beyond its hallowed walls. Politically, ours is an increasingly polarized era, and as the court has shown itself to be far from immune to the ideological pressures that have brought so much of the federal government to a grinding halt, some worry that Americans' belief in and respect for the rule of law could be the ultimate victim.

It's because of this context that a recent study from political science and law professor Lee Epstein (along with two colleagues) that examined Supreme Court justices' rulings on free speech cases has earned so much attention. Epstein and her fellow researchers examined more than 50 years' worth of Supreme Court rulings on free speech and reached a conclusion that is at once unsurprising and deeply troubling: Justices tend to be far more sympathetic to free speech when the speech in question aligns with their ideological beliefs.

Hoping to better understand the study — as well as learn the identities of the worst free speech hypocrites on the current court — Salon spoke this week with Epstein. The interview can be found below, and has been slightly edited for clarity and length.

How did you conduct this study, and what are its chief findings?

We looked at all First Amendment cases involving expression ... And what we did was we coded the outcome of the case, whether the courts then favored the First Amendment or not, and then we looked at the speaker — the nature of the speech — and looked at whether it was a liberal speaker or conservative speaker. Then we controlled for a whole bunch of other variables that could detect outcomes in First Amendment cases, but we were really interested in the ideology of the speaker.

The essential finding is that liberal justices tend to vote in favor of expression when it’s a liberal speaker and conservative justices tend to vote in favor of expression when it’s a conservative speaker.

Was the effect of the ideological preference equal on both sides or was one side more susceptible that than the other?

It was actually pretty equivalent ... Liberals, on the whole, are more supportive of expression. That’s true. But in terms of the bias, it’s significant for both the liberals and the conservatives. Now, if you look at the current court ... it’s clear that the conservatives are more extreme [in their bias] than the liberals.

Was there any member of the current court whose bias was more pronounced than was the case for the other eight?

The most pronounced in the data set is Scalia … Just in terms of the pure percentages, if it were a liberal speaker he'd support the free exercise claim in about 21 percent of the cases. But if it were a conservative speaker, [he'd support free exercise claims] in 65 percent of the cases.

Breyer is the counter example. At least in the raw data ... he shows no bias. So he was 40 percent for expression if it were a liberal speaker, and 38 percent if it were a conservative speaker; and that wouldn’t be a significant difference.

Ginsberg, there’s more of a difference. She tends to support liberal speakers over conservative speakers. There was a 13 percentage point difference, but it’s not statistically significant. And we don’t have enough data yet for Kagan and Sotomayor.

Did anything here surprise you compared to what you expected to find?

I have to say, political scientists, in general, tend to say liberals are more supportive of expression, [while] law professors, in the last four or five years, have been arguing, “No, there’s been a flip. The conservatives are more supportive of expression.” So that was kind of a little bit of a motivation for us to kind of wade into the debate.

And when I saw the results, I have to tell you, I was shocked. I shouldn’t have been, because, really, neither the political scientists nor law professors have it exactly right. Conservatives are supportive of expression when it’s a conservative speaker and liberals tend to be supportive of expression when there’s a liberal speaker. (Although the liberals, on whole, are more supportive.) So, I actually thought the findings were kind of stunning.

What do you think the layperson should take away from this study in terms of how she views the court ?

I think for the court, it’s not a very surprising finding in some ways. Judges are human. And they kind of say they leave their biases behind, but that’s really hard to do. We all have these kind of biases and I think judges do try, they say they try. But it’s just very, very hard. And I think people should understand that ... We humans, we tend to evaluate our own group’s members more favorably than outsiders. Judges are human, and they fall prey to the same kind of bias.

In recent times, the most famous expression of judicial objectivity is probably Chief Justice Roberts' claim that as a judge, he only concerns himself with being a kind of judicial umpire, calling "balls and strikes." So how did he fare in the study?

We don’t have a lot of votes on him; we only have 27 votes. But ... based on those 27 votes, he looks a lot like Scalia: 15.4 percent in favor of speech if it’s liberal, 64.3 percent in favor of the speech if it’s conservative. So he looks a lot like that. I think he probably thinks that he is an umpire and he can be objective and so on ... But again, he’s human.

By Elias Isquith

Elias Isquith is a former Salon staff writer.

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