The Rule of Law and the First Amendment

A friend recently mentioned to me that he likes a legal journalist because she makes Supreme Court cases “accessible.”  I bristled at this word.  Although the public should understand the happenings of the judiciary, accessibility exists in tension with an appreciation of the rule of law.  Accessibility is deceptive.  A depiction of the Court that is easy on the layperson often requires removing legal jargon (or, the actual law) and glossing over the technical aspects of cases.  The sometimes meandering course of precedent is usually also simplified (I recall how in Citizens United, the narrative became that Citizens United overruled precedent, but that recent precedent had also broken new ground from previous precedent).  Supreme Court cases, argued by the best advocates and often involving the most difficult issues, cannot be rendered truly accessible without distorting the complex doctrinal edifice underlying the case and the nuanced, high-level arguments of both sides.

What remains, then, is mostly a discussion of the results of a case.  As a consequence, the public focuses on this result – the political or social ramifications of any case.  It’s no wonder that the judiciary has become increasingly politicized.  Many factors have contributed to our viewing of Supreme Court Justices as America’s royalty, but I believe that the way cases are presented to the public has enhanced this social problem.  When Justice Gorsuch claimed that he believes judges should not make law, and that a good judge must often issue decisions with which he disagrees, many were skeptical of both his sincerity and the propriety of the underlying ideal.  Perhaps this skepticism is well-founded, but it is pernicious.  One important fix for our rule of law crisis is the First Amendment.


I do not mean to imply that judges never should consider the results of a case when issuing decisions.  The result of a case matters to many people (for some, that is all they care about).  A truly absurd or unjust result is often a good indicator that the courts have not properly considered some legal question.  To some degree, legal realism has won, and we must all acknowledge that judges make law in addition to simply interpreting it.  But, judges can avoid deciding cases mostly based on result.  We should expect them to separate their own values from their legal reasoning.

Many might believe this task impossible.  Everyone imports her values into a case to varying degrees.  Yet, rule of law requires that the law applies to all of us equally; like cases yield like results; passion and prejudice do not sway judges; and no judge can decide a case based on whimsy or idiosyncratic preferences.   The key, I believe, is for judges to import their values at as high a level of abstraction as possible.  A high-level importation of values ensures consistency of results and keeps a judge honest in the performance of her task.

Let me give you examples of what I mean by levels of abstraction.  Favoring a defendant’s Fourth Amendment rights in a given case because you are charmed by that particular defendant involves importing values at the most crass, lowest level of abstraction.  This choice comports least with the rule of law.  Favoring that defendant because you hate the government and love the little guy (or, because you think defendants are guilty and love the government) still involves a low-level importation of values.  The judge here allows his own ideology about the role of government to infect his decision-making.

Favoring that defendant, where the law could go both ways, because our constitutional structure is generally defendant-friendly (and fearful of government power) starts to become a more acceptable importation of values.  The judge’s values have here been informed and constrained by our legal regime.  Finally, favoring the defendant because precedent constrains the judge, or because of the history, purpose, and text of the Fourth Amendment, or because that result is the one way to create coherent and administrable law are, of course, the most neutral, abstract reasons on which to base a ruling.

The First Amendment is one area where the public can see rule of law in action.  Although First Amendment doctrine can be quite thorny and complex, even simplified visions of these cases demonstrate judges importing their own values only at high levels of abstraction.  This term, for example, all of the Justices weighing in on both Matal v. Tam and Packingham v. North Carolina ruled in favor of broad First Amendment rights at the expense of what appear to be more crass, partisan results.  In Tam, the Court held that Congress cannot prohibit the Patent and Trademark Office from trademarking disparaging names, much as we might find The Washington Redskins’ team name almost anachronistic in its blatant racism.  In Packingham, the Court held that the state of North Carolina cannot ban sex offenders (arguably the least popular, most maligned demographic in our society currently) from making Facebook profiles, even if this might render some children less safe.  These two decisions stand as evidence that every member of the Court cares about the coherence of the law, the post-Abrams precedents involving the First Amendment, and the values enshrined in the broadly written text of the First Amendment.

Not all First Amendment cases are divorced from their political context, however.  Citizens United, a 5-4 decision, was extremely polarizing, and appeared to many to be decided based on results.  (This is an excellent law review piece arguing that both the conservative and liberal Justices may have a coherent vision of the First Amendment that led to their votes.)  Next term, the Court will decide Masterpiece Cakeshop, which has great political significance.  Masterpiece Cakeshop, about whether a designer of custom-made cakes can invoke the First Amendment to refuse to sell cakes for same-sex weddings, is a case with difficult line-drawing issues.   Independent of the result, my hope is that the Court, and our legal journalists, focus on finding coherent legal principles, engaging in sound line drawing, and honoring the history and text of the First Amendment – in addition to noting the significant effects this case will have on LGBT rights and religious liberty.  Our rule of law values, values at the highest level of abstraction, depend on it.


4 thoughts on “The Rule of Law and the First Amendment”

  1. I really liked this piece but I wanted to raise a couple questions/issues.

    First, the danger of the public seeing supreme court opinions as just an exercise in motivated reasoning to cover underlying partisan affiliation seems clear but its not so clear what particular improvements are necessary to avoid this danger (or as much as is worth avoiding). To see what I mean lets consider the analysis given in the linked paper “Two Concepts of Freedom of Speech.” as a possible alternative way the public could understand first amendment jurisprudence.

    While I found the two concepts (free speech as liberty and free speech as equality) interesting views that *could* motivate people to reach certain results the paper itself offers no evidence that it does motivate the supreme court justices.* Indeed, the paper ultimately gives the game away and admits that other principles like viewpoint neutrality pop up and override the results suggested by the liberty/equality views.

    So, in many respects, this model is not really different than the partisan bias model. Yes, it identifies a factor that probably does affect the justices votes (an inclination to find liberty or equality arguments more appealing) at the cost of regarding the actual principles/arguments appealed to in the decisions largely pretextual as they aren’t the real reason they voted as they did…except when someone votes in a different way than the theory predicts.

    However, in other respects it is very different. It replaces the idea that the other guys are motivated by base partisanship they struggle to cover up with the idea that everyone is pursuing high minded abstract principles and try to bend 1st amendment jurisprudence to favor their abstract principle (i.e to the extent precedent allows…). It also avoids descriptions that align with the public’s partisan affiliations.

    So is the kind of model presented sufficient to address the worries you have or is the desired goal for the public to accurately understand the reasoning behind judicial decisions or at least believe the reasoning in the opinions plays a substantial, usually dominate, role in why they voted the way they did.

    **I’m willing to believe that we could probably use first amendment jurisprudence to replace the partisan bias model with something like the liberty vs. equality model but not that we could use it to convey the actual reasons or even that justices are usually primarily motivated by the arguments they give in their opinions.** If this was possible SCOTUSBlog would already have done it. **The public can’t believe that the justices are behaving in a principled non-motivated fashion if none of the explanations for the outcome they see in the media only explain it in terms of something other than the reasons given by the justices themselves. But SCOTUSBlog seems to be about as accessible as it is possible to be while conveying the actual arguments deployed by the justices.

    *: (Support for above claim about “Two Concepts of Freedom of Speech”) Indeed, the paper itself raises many instances in which the justices views are strikingly different than one would predict on this model. For instance, the paper explains why the equity camp isn’t upholding obscenity laws to protect women by simply insisting (its not a fact inherent in the laws wording) on understanding “obscene speech as a minority perspective that deviates from and undermines socially predominant norms.” As this example is hardly unique we are left with a model for the justices views on free speech that gets those views wrong supplemented by a series of ad hoc fixes to explain the mismatch with jurisprudence.

    That alone damns this model as an accurate description of the justices views but you need not take my word on this. The paper itself openly admits that, despite the compelling equality arguments for restricting corporate pornographers from sexualizing the oppression of women the court would reject such a speech limitation because they accept viewpoint neutrality. So no, the justices views aren’t explained by the model because on key questions they abandon it and apply totally different principles (viewpoint neutrality) without being forced to do so by precedent.

    This isn’t to say that this model isn’t interesting or useful. This is one way of thinking about free speech and its probably true that Stevens finds equality based arguments more convincing than liberty based arguments *other things being equal*.


  2. Ohh, I forgot to say that maybe the best solution is just to try and further hide and obscure the operation of the court from the public at large.

    Abandon the process of identifying which justices voted for which outcomes and issue unsigned opinions with each section identifing only the number of votes received. .If necessary discourage personal styles and rely more on shared clerks to do the actual final wording to ensure that its not obvious how to (with high accuracy) identify who authored/voted for what (I assume complex statistical methods will probably be able to but not in a way that will be convincing in political discussions).

    If people can’t reliably identify who voted for what they can’t fixate on simplistic Scalia = conservative nutjob and by letting the actual text of the decisions to take center stage instead of the personalities and allegiances of particular justices we avert continued politicization.

    As a side bonus you build in a bit more coherence/respect for precedent into the system since circuit courts can’t guess whether a recent change in the SCOTUS lineup means a decision is ripe for overturning. Not to mention this also makes it easier for a justice to abandon views they previously advocated (say going back on clear statements about their judicial philosophy mentioned in confirmation).


  3. So you would agree that even if Judge Garland had been seated for Tam and Hillary had won the election, that the four democrat-appointed justices would’ve all voted the same?

    You would agree that Trump’s presidency didn’t change any law professor’s position on Tam, but that they all held the same principled non-partisan position throughout the entire month of November?


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