Social scientists have long posited that humans have an innate tendency to favor their own group over others – called “in-group bias.” In 1906, sociologist William Sumner proclaimed how “each group nourishes its own pride and vanity, boasts itself superior, exists in its own divinities, and looks with contempt on outsiders.” But it was not until recently that scholars have considered the impact of such bias on judicial behavior.
In 2005, for example, a study published in the Yale Law Journal examined Title VII sexual harassment and sex discrimination cases in 1999, 2000, and 2001. The results of the study were clear and compelling: In sexual harassment and sex discrimination cases, the judge’s gender matters. Female judges, according to the study, decided for plaintiffs more often than did male judges at a statistically significant rate. Interestingly, the mere presence of females on the panel made a significant difference in the outcome – male judges on panels with female judges decided for plaintiffs more than twice as often as those on all-male panels. These findings were corroborated in 2010 a study by three law school professors.
More recently, research has found a powerful in-group bias in First Amendment free speech cases.
The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. The most basic component of freedom of expression is the right of freedom of speech, which allows individuals to express themselves without interference or constraint by the government. On almost every issue of free speech theory, doctrine, and practice, virtually every county on the face of the earth diverges from the United States, and diverges in the direction of lesser protection. Simply stated, the importance of free expression as a basic and valuable characteristic of American society cannot be underestimated.
But not all speech, it seems, is created equal.
According a new study, Supreme Court justices are “opportunistic free speech advocates.” The authors of the study – two political scientists and a law professor – examined 4,519 votes of the Justices in 516 First Amendment free expression cases decided between the 1953-2010 Terms.
Based on their examination, the authors concluded that “the Justices’ votes tend to reflect their preferences towards the speakers’ ideological grouping, and not solely underlying taste for the First Amendment qua Amendment.” In other words, the Justices “are willing to turn back regulation of expression when the expression conforms to their values and uphold it when the expression and their preferences collide.”
In-group bias was pervasive among the Court’s conservative justices. The most opportunistic Justice 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. Justice Clarence Thomas is not far behind, and Justice Anthony Kennedy favored conservative speakers by a smaller but still statistically significant margin. Although Chief Justice John Roberts and Justice Samuel Alito Jr. have not cast enough votes for a reliable appraisal, the preliminary data show a similarly significant preference for conservative speech.
The story is more complicated among the Court’s four liberals. Although each liberal justice supported free expression more often when the speaker was liberal, the results were statistically significant only for Justice John Paul Stevens, who retired in 2010. He supported liberal speakers about 63 percent of the time and conservatives about 47 percent of the time. The study did not include results for Justices Sonia Sotomayor and Elena Kagan.
As former Supreme Court Justice Louis D. Brandeis (1856-1941) wrote in Whitney v. California (1927), “Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.” But such speech may only be protected, it seems, when the Justices agree with you.
“Though the results are consistent with a long line of research in the social sciences, I still find them stunning – shocking, really,” one of the studies authors, Lee Epstein, told the New York Times.
Featured Image Credit: Stephen Masker on Flickr.