In it, but not of it. TPM DC

Study: Justices More Likely To Support Free Speech They Agree With

Vwy1rouw3k88dtswazdc

The most opportunistic member over that span was found to be Justice Antonin Scalia, who was just over three times as supportive of free-speech rights of conservatives as compared to liberals.

Not far behind him was Justice Clarence Thomas, who was just under three times as likely to back conservatives' free-speech rights over liberals.

Justices Anthony Kennedy and Sandra Day O'Connor -- both Reagan appointees, and often swing votes -- were also found to have a statistically significant preference for free speech rights of conservatives over liberals.

The disparity exists with liberal members, too. Justice John Paul Stevens, who retired in 2010, was likelier to support the free speech claim by a liberal as compared to a conservative. Clinton appointees Ruth Bader Ginsburg and Stephen Breyer were not found to have a statistically significant preference in their cases.

"[Justices'] votes are neither reflexively pro- or anti-the First Amendment but rather pro- or anti- the speaker's ideological enclave," the researchers say.

The USC study measured the percentage of support for free speech claims by justices. The results for Bush appointees Samuel Alito and John Roberts could not be fully modeled, given their fewer votes, but early data suggest they follow a highly opportunistic pattern, too. Obama appointees Elena Kagan and Sonia Sotomayor were excluded from the study because they have not yet cast enough First Amendment votes in their time on the court.

Below is a table from a summary of the findings as prepared for the New York Times, which first reported on the study Monday. The paper, by Lee Epstein, Christopher M. Parker and Jeffrey A. Segal, is titled, "Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment."

Photo credit: AP; split by TPM's Brendan James

About The Author

Rbzswuatscnipmb5upus

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.