The Roberts Court and freedom of speech.

• Author: Chemerinsky, Erwin

I was asked to talk about the Roberts Court and freedom of speech. I thought what I would do is try to situate the First Amendment discussion in some larger themes about the Roberts Court--where it is now and where it is likely to go in the foreseeable future.

I want to begin with some numbers concerning the Supreme Court. I think they are very revealing. Last year the Supreme Court decided seventy-three cases after briefing and oral argument. This is a bit less than the seventy-five cases decided in the year before, but more than the sixty- seven cases the year before that or the sixty-eight cases the year before that. But to put that in some historical context, through much of the twentieth century the Supreme Court was deciding over 200 cases a year. As recently as the 1980s, the Court was deciding about 160 cases a year. To go from 160 cases to seventy-three cases in two decades is truly remarkable. It has enormous implications for all lawyers no matter what their field of practice. More major legal issues go a longer time before being resolved. More conflicts among the circuits in the states go a longer time before being settled.

There is another, less noted implication of the smaller docket. As the number of cases has gone down, the length of the opinions has gone up. I can show you a perfect inverse relationship. As the number of decisions decreases, the length of the opinions, as measured by words per opinion and pages per opinion increases. Now I am not sure what is cause and what is effect. Are the Justices taking fewer cases because they want to write longer opinions, or, as I would guess, are they writing longer opinions because they have fewer cases?

Last term, the most important case--certainly the most important First Amendment case--was Citizens United vs. Federal Election Commission. (1) The slip opinion totaled 157 pages long. (2) But that was nothing compared to the Second Amendment case that came down on June 28, McDonald vs. City of Chicago: (3) it was 220 pages long. One of the things I have to do every July is prepare the annual supplements to my Constitutional Law and Criminal Procedure casebooks. There is no way to edit a 157 page opinion, let alone a 220 page opinion, into an assignment manageable by law students in one night without making a hash of it. So I have decided to start a new campaign and I want to recruit you to join me in it: word and page limits should be imposed on the United States Supreme Court.

Another statistic that I found disquieting last term was that there were fourteen cases decided in per curiam opinions without briefs and oral arguments. These are cases that were decided entirely on the petition for certiorari and the opposition to the petition for certiorari. I am enough of a lawyer that I want the chance to at least brief and argue my case. Here, the Supreme Court was deciding without briefs and oral arguments. There is a tremendous difference between what goes into a petition for certiorari or an opposition to petition, compared to a brief on the merits. I hope this is not the beginning of a trend.

One more statistic about last term, the two Justices who were most often in agreement were Justices Scalia and Thomas. They voted together ninety-two percent of the time. Next most often in agreement were Justices Ginsburg, Breyer, and Sotomayor. They voted together ninety percent of the time, although not always in the same cases.

The second theme I would identify is familiar. When it matters most, it is the Anthony Kennedy Court. That is true with regard to freedom of speech and the First Amendment as with all other areas of law. Last term, Justice Kennedy and Chief Justice Roberts were both in the majority ninety-three percent of the time, the most of any Justices. The year before, Justice Kennedy was alone being most often in the majority, ninety-three percent of the time.

Of course, it is most apparent that this is the Kennedy Court by focusing on the five-to-four decisions. These are usually the most important decisions, and by definition they are the most controversial. In each of the five years in which John Roberts has been Chief Justice, Anthony Kennedy has been in the majority in more five-to-four decisions than any other Justice. Last year there were seventy-three cases and sixteen of them were decided five to four. Justice Kennedy was in the majority in thirteen. The year before that, there were seventy-five cases and twenty-three were five to four. Justice Kennedy was in the majority in eighteen, the most of any Justice. A couple years before that there were twenty-four five-to-four decisions and Justice Kennedy was in the majority in literally every one of them.

Certainly from the perspective of lawyers who write briefs to the Justices and stand before them, there is often a sense of arguing to an audience of one. I filed a brief last term and I will tell you in all honesty, my brief was a shameless attempt to pander to Justice Kennedy. If I could have, I would have put Anthony Kennedy's picture on the front of my brief. My brief was not unique among those in this case; this case was not unique among those on the docket. Everyone knows, even the Justices know, it is the Anthony Kennedy court.

Thus, you can get the best sense of the overall ideology of the Roberts Court by focusing on the five-to-four decisions that are split along traditional ideological lines. Last term there were twelve such cases, with Roberts, Scalia, Thomas, and Alito on one side, and on the other, Stevens, Ginsburg, Breyer, and Sotomayor. Justice Kennedy sided with the conservatives in nine and with the liberals in three. The year before that there were sixteen five-to-four cases split among ideological lines. Justice Kennedy sided with the conservatives with eleven and with the liberals in five. If you look at the five years in which John Roberts has been Chief Justice, in the ideologically divided five-to-four cases, Anthony Kennedy has sided with the conservatives significantly more than twice as often as with the liberals.

Well this then brings me to my third theme. When it comes to freedom of speech, the Roberts Court has been very much a conservative court. I think you can understand what the Roberts Court has done with regard to free speech by just focusing on traditional, contemporary, conservative ideology. I have often said I think you can understand the Roberts Court better by reading the 2008 Republican platform than by reading the Federalist Papers, and I think that is certainly true with regard to freedom of speech. Now the key example on...