The Roberts Court Constitution of Freedom of Speech: Preferences, Principles, and the Study of Supreme Court Decision-making
Date of Award
Doctor of Philosophy (PhD)
Thomas M. Keck
David M. Driesen
Freedom of Speech, Judicial Decisionmaking, Multi-method Research
Social and Behavioral Sciences
Since the appointment of Chief Justice G. Roberts to the U.S. Supreme Court, political scientists and legal scholars have assessed the Court’s behavior in a diverse array of cases and issue areas, including those touching on federalism, reproductive rights, voting rights, and economic liberty (cases involving businesses and corporations). Few issues have proven as vexing as the Court’s constitution of the First Amendment’s command “Congress shall make no law…abridging the freedom of speech…”
In light of the Court’s ongoing constitution of the scope and coverage of the First Amendment, a narrative has emerged that paints the Court as distinctly conservative. In a number of widely publicized, controversial decisions, the Court under Chief Justice Roberts has incrementally dismantled federal and state efforts at campaign finance reform, made union fundraising more difficult, and restricted the availability of First Amendment protection for students, prisoners, and government employees. This explanation, however intuitive and prevalent, is complicated by another narrative. During the same period, the Court has issued incredibly speech-protective decisions in cases involving the distribution of videos depicting dog fights, violence in videogames, protesters at the funerals of fallen service members, lying about military awards, NGOs working abroad to address the AIDS epidemic, roadside signage, and even government employees. Adding another wrinkle to the fold is entire corpus of anti-speech claimant decisions that have been issued by a unanimous Court, or a Court divided in a way unexpected by the ‘liberals versus conservatives’ characterization of our nation’s highest tribunal.
These dual storylines present a puzzle that motivate a set of interrelated research questions: What is the nature of the Roberts Court’s constitution of freedom of expression? Is judicial behavior within this politically salient issue area explained by the ideological preferences or attitudes of the justices? If not, what is the alternative explanation? And, more broadly, what are the limitations of the conventional means by which scholars study judicial behavior? This dissertation explores these questions through a set of conventional and innovative approaches to the study of judicial decision-making. It examines the entire universe of free speech decisions of the Roberts Court from external and internal approaches to the study of judicial decision-making. To do so, the dissertation employs a multi-method approach, including large and medium-N analyses of Roberts Court free speech decisions and qualitative tools of conceptual development and process tracing.
This project offers four key findings related to the effect of judicial attitudes on the constitution of protection for freedom of expression during the Roberts Era. First, as indicators have incrementally improved upon accurately measuring a key concept of interest – the ideological direction of decisions in freedom of expression cases – the bivariate relationship between judicial attitudes and ideological voting becomes more tenuous. This suggests the need for a continuing research program focused on conceptually valid operationalization of decision direction in freedom of expression cases and beyond. Second, with the Rehnquist Court Era as a comparison point, the effect of judicial attitudes across all votes during the Roberts Era is statistically significant – stronger conservatism scores correlate positively with a pro-speech decision. While this relationship does not exist for the Rehnquist Court, a conceptual typology of cases comparing the ordering of voting coalitions to the direction of decisions in those cases reveals that the Roberts Court is, in some ways, less ideological than the Rehnquist Court Era. Third, through the tool of process tracing and the use of “hoop tests,” the Roberts Court is best understood as having a conservative orientation though not monolithically so – there is considerable heterogeneity in terms of the ideological orientation and conceptions of the judicial role held by the justices that frequently result in unexpected voting alignments. Fourth, the Court’s certiorari process in free expression controversies is better explained by jurisprudential concerns rather than ideological cues. However, once disaggregating the Court’s certiorari docket by issue area, there is evidence for both the ideological and legal explanations for the Court’s behavior in free expression decisions.
The broader finding wrought from this project is that the judicial constitution of contemporary free expression protection in the U.S. cannot be reduced to single-cause explanations. The complex and often secret nature of various stages of judicial decision-making at the US Supreme Court, as well as the competing, longstanding epistemological approaches to understanding judicial behavior, strongly suggests that scholars must take care to question the assumptions of and examine behavior from both “internal” and “external” perspectives on Court behavior. Sacrificing the former at the altar of the latter leaves interested observers without a clear idea of the structure and language through which high politics is contested at the Court – a language that makes some claims possible and others untenable. The reverse is also problematic: Taking the justices at their word and assuming that fidelity to legal principles and sincerely-held conceptions of the judicial role explains judicial behavior ignores what appear to be patterns of partisan or ideologically driven voting. Beyond answering a substantive question of great interest for scholars, lawyers, litigants, and citizens alike, this research presents new directions for the study of judicial decision-making that have great potential for traveling to other issue areas and constitutional courts Syracuse University.
Metroka, Brandon, "The Roberts Court Constitution of Freedom of Speech: Preferences, Principles, and the Study of Supreme Court Decision-making" (2017). Dissertations - ALL. 695.