Political regimes and the future of the First Amendment

• Date: 06 May 2008
• Published date: 06 May 2008
• Pages: 107-139
• DOI: https://doi.org/10.1016/S1059-4337(08)00804-1
• Author: Thomas F. Burke

POLITICAL REGIMES AND THE

FUTURE OF THE FIRST

AMENDMENT

Thomas F. Burke

Fifty years ago the political scientist Robert Dahl concluded that courts

are usually in sync with ‘‘the policy views dominant among the lawmaking

majorities’’ and thus offer little help to aggrieved minorities (Dahl, 1957,

p. 285). In recent years, Dahl’s classic formulation has received renewed

attention. This chapter uses the example of the Rehnquist Court’s First

Amendment decisions to analyze ‘‘regime politics’’ theory. On religion

cases the Rehnquist Court was generally in sync with the socially

conservative strain in the Republican Party, but in other First Amendment

areas the pattern is far more complex, raising questions about the

relationship between conservative judges and the political movements that

brought them to office.

To the extent the Constitution really is, as Supreme Court Chief Justice

Charles Evan Hughes famously said, what the judges say it is, then of course

the future of the First Amendment depends on who will be interpreting it.

1

Predicting the judiciary of the future, though, depends on such small matters

as the outcome of the 2008, 2010 and 2012 elections, and the health, well-

being and attitude toward retirement of the current corps of Supreme Court

justices – all matters on which prophets and soothsayers have as much

Special Issue: Constitutional Politics in a Conservative Era

Studies in Law, Politics, and Society, Volume 44, 107–139

Copyright r2008 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(08)00804-1

107

expertise as legal scholars. With the federal courts now slightly tipped

toward Republican appointees, and with two new Supreme Court

appointees whose First Amendment views are far from crystal clear,

attempting to foretell what courts will be saying in the 21st century about

obscenity, or school prayer, or copyright law, is a fool’s errand.

This chapter, then, aims at something markedly less ambitious: an

examination of changes in how conservative judges approach the First

Amendment, and a brief consideration if what this portends for the future.

It may be impossible to chart the future of the Roberts Court, much less the

entire federal and state judiciaries, with any accuracy, but quite possible to

say some interesting things about how conservatives will talk and argue

about the First Amendment in the early 21st century.

To do this, though, I examine two Supreme Courts that did their work

mostly in the 20th century:

The First Amendment Religion Court. This Court moved First Amend-

ment law in ways that cultural conservatives mostly admired. It chipped

away at Warren Court Establishment and Free Exercise precedents,

facilitating voucher programs that aid religious schools, and forcing

government institutions to provide equal access to religious groups. The

Court moved doctrine gradually, and in some areas – most famously school

prayer – frustrated the Christian right, but overall, this court as one critic

put it has ‘‘turned the constitutional law of religion nearly upside down’’

(Greenawalt, 2004).

The First Amendment Speech and Press Court. This Court often pushed

First Amendment law away from the expressed desires of the Christian

right. Rather than knocking down Warren and Burger Court precedents, it

expanded them. It struck down laws banning flag burning and internet

pornography, leaving intact or expanding protections for sexual speech.

Some of its decisions, on campaign finance and commercial speech, were

more palatable to conservatives, but overall the Court’s decisions mostly

reversed rather than advanced the expressed desires of cultural conservatives

within the Republican Party.

These two courts are, of course, the Rehnquist Court. I have dramatized

their differences, but one of them clearly was a more reliable supporter of

the policies of the Republican Party, and especially cultural conservatives

within the Republican Party, than the other.

The differences are evident not just in the decisions themselves, but also in

the justices’ explanation of their votes, their published opinions. In the religio n

cases, the opinions show a Rehnquist Court eager to revisit fundamental

assumptions, upend precedents and reconsider the original meaning of the

THOMAS F. BURKE108

phrases in the Constitution. Indeed the Rehnquist Court’s religion opinions

sometimes seem like clashes between rival historians, albeit historians with

a cause. The obstacles created by a welter of Warren and Burger Court

precedents are sometimes swept away, and with them rules that limited

religious organizations and religious expression, to the delight of the Christian

Right.

The Rehnquist Court’s opinions in non-religious First Amendment cases

have a markedly different tone. This Rehnquist Court usually avoids

fundamental questions and fails to explore the ‘‘original meaning’’ of the

First Amendment. Instead it works within the conceptual framework of

earlier cases, and usually focuses on questions of application and policy. The

Court’s liberals and conservatives differ, but much more narrowly, on the

parameters of precedents and how best to apply them to the facts at hand.

Further, there are several instances in which conservatives such as Scalia

‘‘switch’’ and line up with the moderate-to-liberal wing of the Court. The

resulting record is a puzzle. This Rehnquist Court, unlike the religion court,

seems almost detached from the agenda of Republicans, floating in its own

space defined by nearly a century of First Amendment precedents. Flag

burners and Internet pornographers are not, one might think, core

constituencies of the Republican Party. Why would Reagan and Bush

appointees be lining up behind them?

Posing the question in this way is useful, but simpleminded in at least two

respects. First, judges are,of course, more than mere agents of their sponsors.

Even in the rare case in which they are perfectly aligned in their policy views

with their appointers, judges act within an institution and profession that

shapes what they think is possible and what counts as good judicial decision

making. The task currently at the center of political science scholarship

on courts is to understand how these institutional and professional influences

on the judiciary interact with appointment patterns and external influences

(Keck, 2007a). That turns out be the same challenge presented to anyone

interested in charting the future of the First Amendment. The Rehnquist

Court’s decisions in this realm provide a fascinating case with which to

examine how the many influences on federal judges intertwine.

But my question is simpleminded in another, potentially more trouble-

some way: It is reductive in its portrayal of the appointing regime. Like any

political movement, conservatism has internal tensions, competing strands

and priorities that change over time. Cultural conservatives, especially

Christian conservatives who make up a sizeable bloc within the Republican

Party, have been skeptical both of the Warren and Burger Court’s rulings on

religion and on free expression more generally. Yet there has also always

Political Regimes and the Future of the First Amendment 109