Supreme Court Justices Show Bias in Free Speech Cases– But Especially the “Conservative” Justices


    ( – promoted by lowkell)

    A new study, reported in the New York Times, reports that, in cases involving free speech issues, the various justices on the Supreme Court are more likely to protect the speech of people who share their ideological orientation (liberal/conservative) than the speech of people on the other side.

    Not a great surprise. I’ve got a talk I’ve given at various times in the past seven years called “The Challenge of Fair-mindedness” (or “The Challenge of Justice”) which is about how difficult it is for people to embrace fairness over self-interest.

    But the bias of these Supreme Court Justices is far from symmetrical. Take a look at the chart contained in the in the Times’ article:

    It shows that while the liberal justices are a bit biased toward protecting liberal speech, the “conservative” justices are dramatically more concerned to protect the speech on their side.

    The New York Times article does mention this asymmetry, but in a very mild way:

    “While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

    Is this way of reporting it — putting the asymmetry into a subordinate clause to be trumped by stress placed on the “both sides do it” piety — more of that damnable liberal wishy-washiness? That tepid statement   hardly does justice to what the chart shows: While the likes of Breyer, Ginsburg, Stephens, and Souter have been about 5-25% more likely to defend liberal than conservative speech, the records of Thomas, Scalia, Alioto, and Roberts reveal them to have been THREE TO FOUR TIMES as likely to protect conservative than liberal speech.

    Which raises a question: to what extent is this greater conservative bias the result of their UNCONSCIOUSLY favoring their own side, rather than applying the Constitution blindly, and to what extent is it because THEY DON’T CARE about being fair?

    Whatever the source of the striking asymmetry, this is no time to be minimizing the extraordinary developments on the political right. For the important question, given the total picture of our national crisis, is this: What is going on that accounts for the striking contrast between the almost-fair liberals, and the grotesquely unfair conservatives?

    Hence the motto of my campaign to focus the national conversation on the heart of our current political pathology:

    See the evil. Call it out. Press the battle.

    There's no paywall on Blue Virginia, and we definitely want to keep it that way! If you want to help support our work, you can donate here - thanks! Also, you can sign up for our weekly email list here.