“... the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.” It's “in-group bias.”

...................................................................................................................................................................
For Justices, Free Speech Often Means ‘Speech I Agree With’
By Adam Liptak, May 5, 2014

Justice Antonin Scalia is known as a consistent and principled defender of free speech rights.

It pained him, he has said, when he voted to strike down a law making flag burning a crime. “If it was up to me, if I were king,” he said, “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.” But the First Amendment stopped him.

That is a powerful example of constitutional principles overcoming personal preferences. But it turns out to be an outlier. In cases raising First Amendment claims, a new study found, Justice Scalia voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones. In 161 cases from 1986, when he joined the court, to 2011, he voted in favor of conservative speakers 65 percent of the time and liberal ones 21 percent.

He is not alone. “While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

Social science calls this kind of thing “in-group bias.” The impact of such bias on judicial behavior has not been explored in much detail, though earlier studies have found that female appeals court judges are more likely to vote for plaintiffs in sexual harassment and sex discrimination suits.

Lee Epstein, a political scientist and law professor who conducted the new study with two colleagues, said it showed the justices to be “opportunistic free speech advocates.”

The findings are a twist on the comment by Justice Oliver Wendell Holmes Jr. that the First Amendment protects “freedom for the thought that we hate.” On the Supreme Court, the First Amendment appears to protect freedom for the thought of people we like.

“Though the results are consistent with a long line of research in the social sciences, I still find them stunning — shocking, really,” Professor Epstein said.

The study considered 4,519 votes in 516 cases from 1953 to 2011.

It was conducted by Professor Epstein, who is about to join the faculty at Washington University in St. Louis; Christopher M. Parker, a political scientist at Centenary College of Louisiana; and Jeffrey A. Segal, a political scientist at Stony Brook University.

There may be quibbles about how they coded individual votes. But it was seldom difficult to tell which side was invoking the First Amendment. Nor is it usually hard to assign an ideological direction to particular speakers or positions.
...................................................................................................................................................................