Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment

Abstract

While scholars debate whether liberals or conservatives on the Supreme Court are more supportive of First Amendment rights (compare Pritchett [1948] and Epstein, Landes, and Posner [2013] to Volokh [2011] and Sullivan [1992]), we argue that the Court’s First Amendment jurisprudence may fruitfully be viewed through the lens of In-Group Bias, a fundamental norm in social psychology that holds that humans tend to evaluate our own group and its members more favorably than outsiders.

From this perspective we argue that liberal (conservative) justices will evaluate speech claims made by liberal (conservative) parties more favorably than they will speech claims made by conservative (liberal) parties, after controlling for other salient factors. After correcting the coding in Spaeth’s Supreme Court database for ideological direction in cases in which the First Amendment issue is not the main issue, our multilevel hierarchical model finds a substantial in-group bias in the votes of U.S. Supreme Court justices from the 1953-2010 Terms of the Court. The findings hold up through a series of robustness checks.