John Roberts: Mr. First Amendment

Ronald Collins is the books editor for SCOTUSblog. He is the co-founder and co-chair of the First Amendment Salons and was formerly the Harold S. Shefelman scholar at the University of Washington School of Law. David Hudson, Jr. is an assistant professor of law at Belmont University. He is the author, co-author or co-editor of numerous books, and he has published widely on First Amendment issues.

“I would never underestimate his ability to influence people.”
– Joan Biskupic, discussing her book “The Chief: The Life and Turbulent Times of
Chief Justice John Roberts”

John Roberts assumed office on September 29, 2005. Not too long after that, the new chief justice sat down for an interview with Jeffrey Rosen of the National Constitutional Center. During that exchange, Roberts spoke a lot about Chief Justice John Marshall.

[I]t was just in [Marshall’s] nature to get along with people. I think that had to play an important role in his ability to bring the Court together, to change the whole way judicial decisions were arrived at, to really create the notion that we are a Court – not simply an assemblage of individual justices. … It was the force of his personality. That lack of pretense, that openness and general trustworthiness, were very important personality traits in Marshall’s success.

That very much appears to be the Roberts persona – and it’s not the only trait he shares with his predecessor. Marshall was also a masterful tactician, and here, too, the 17th chief justice is very much like the fourth.

The 2019-20 term, for example, reveals how Roberts channeled those “very important personality traits” he so admires in Marshall. Part of Roberts’ vision, as he put it in his interview with Rosen, is “getting seven votes rather than five” – and he achieved that goal in Trump v. Vance and Trump v. Mazars. But as Roberts’ majority opinion in Espinoza v. Montana Department of Revenue (a 5-4 decision on the First Amendment’s religion clauses) revealed, sometimes unanimity or near unanimity must take a back seat to how the law is shaped.

These two sides of the chief justice are exemplified in a line of cases central to the mission of the Roberts court. In the 56 First Amendment free speech cases the court heard between 2005 and 2020, the court was unanimous nearly a third of the time, while a 5-4 division occurred a quarter of the time.

In his Rosen interview, Roberts also took exception to the prevalent practice of writing separate opinions: “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.” That creed is one that Roberts has honored in the First Amendment free expression context. He rarely authors dissents (only one partial dissent in 56 cases), hardly joins in dissent (two cases, here and here), and likewise seldom writes a separate opinion (two full concurring opinions, here and here).

But when it comes to majority opinions, Roberts is often at the control center. He has written the opinion for the court in a whopping 15 First Amendment free expression cases. That’s more than twice as many majority opinions in these cases as his colleagues, and it’s a feat that gives his jurisprudence staying power. Compare his 15 with the total number of such opinions written by Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan (9), or the total for Justices Antonin Scalia, Clarence Thomas and Samuel Alito (15), or even the total for Justice Anthony Kennedy alone (7).

There is a certain resolve, at once philosophical and tactical, that is at work here. In 95% of the free expression cases decided during his tenure, Roberts has been in the majority. Equally revealing, Roberts has assigned the lead opinion to himself almost 29% of the time. In other words, there is something special about this genre of cases, something that speaks to a grander vision of who Roberts is and what he hopes the court bearing his name might be remembered for.

Such resolve is apparent in the tenor of his free speech opinions: “Speech is powerful. It can move us to both tears of joy and sorrow, and … inflict great pain,” is how he cast it in his majority opinion in Snyder v. Phelps (2011). It is also manifest in the substance of his opinions, as evidenced by what he wrote in United States v. Stevens (2010), albeit with a nod to John Marshall’s seminal 1803 opinion:

The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison.

In other words, Roberts is quite at home in the house of the First Amendment – it is perhaps his favorite jurisprudential dwelling.

* * * *

“I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas. … People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.”

That’s how Roberts described his First Amendment voting record when he engaged former Attorney General and Belmont Law School Dean Alberto Gonzales in a conversation about his jurisprudence in February of 2019. In the course of that conversation, the chief justice stressed the importance of unanimity or near unanimity combined with the desirability of narrowly drafted opinions designed to better ensure judicial accord. He also bemoaned the divisive state of affairs in the Supreme Court confirmation process and took exception to the practice of asking nominees their views on cases or controversies. With his trademark diplomacy, Roberts downplayed the importance or even the accuracy of “liberal” or “conservative” labels. “It’s a shorthand, a lot of people us it,” he emphasized. “The press in particular, they use it a lot … because they think it helps get a message across. But I think it’s very misleading.” To illustrate the point, he noted: “I don’t know where you are put conservative or liberal in the First Amendment area.”

In some First Amendment free expression cases, the chief justice’s words about unanimity certainly ring true. Take, for example, the unanimous judgment in McCullen v. Coakley (2014), a controversial case in which the court struck down a Massachusetts law that created 35-foot “buffer zones” around abortion clinics. Few in the press or public foresaw that 9-0 ruling. True to his statements at Belmont, Roberts’ majority opinion was drafted in a narrow manner, careful to avoid a liberal-conservative divide in the outcome.

When one looks beyond the judgment in that case, however, the liberal-conservative divide is quite apparent. In a separate opinion concurring in the judgment, Scalia (joined by Kennedy and Thomas) took sharp exception to what he called Roberts’ “Something for Everyone” approach. In particular, he faulted the chief for not treating the Massachusetts statute as a content-based restriction on speech:

Today’s opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

Scalia thus urged that Hill v. Colorado – a 2000 decision that upheld a Colorado law limiting speech within eight feet of health care facilities – be overruled and that a strict scrutiny standard be applied in abortion-clinic protest cases. And Alito also voiced similar concerns.

The McCullen case was notable for two reasons: (1) Its judgment was unanimous, and (2) the chief justice was in the majority in a case offering less First Amendment protection than what was urged by his colleagues who wrote in a separate concurring opinion. Hence, unanimity has its doctrinal price. (In a petition for certiorari this past term, Price v. City of Chicago, the issue was whether the court should reconsider Hill in light of its intervening decisions in McCullen and Reed v. Town of Gilbert (2015). The justices declined the invitation and denied the petition.)

Another indicator of a conservative-liberal divide in the Roberts court’s free speech jurisprudence is this fact: The lead authors in the lion’s share of the 56 opinions were “conservatives” – the chief justice followed by Alito and Kennedy. Not until the 2018-19 term was the “liberal” Kagan assigned a majority opinion in a free expression case (that’s one majority opinion out of the 30 such cases she participated in; it came in Iancu v. Brunetti).

Moving forward, it may be something of a Sisyphean task for the chief justice to secure unanimity or near unanimity in certain free speech cases, or even reach that 7-2 margin he desires. This is especially so given some of the cases that have come to be known as hallmarks of the Roberts court. When it comes to the First Amendment, unanimity frustrates the realization of those objectives that Roberts views as central to his free speech jurisprudence.

* * * *

“It doesn’t bother me in the least that our opinions are criticized. They should be when people think they are wrong.”

Roberts spoke those words in his characteristic calm manner during his discussion with Gonzales. But that calm exists in the face of strikingly divergent notions about the role of the First Amendment in our constitutional democracy.

In one important case, four of his colleagues found the chief justice’s understanding of the First Amendment troublingly “wrong.” In a robust dissent in Janus v. American Federation of State, County, and Municipal Employees (2018), a 5-4 ruling about public sector union fees, Kagan (joined by her liberal colleagues) declared that the majority was guilty of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Worse still, she argued, “[d]epartures from stare decisis are supposed to be ‘exceptional action[s]’ demanding ‘special justification’ … but the majority offers nothing like that here.”

As the court’s liberal wing viewed it, such “weaponizing” has been particularly apparent in campaign finance cases. Of the seven such cases decided by the Roberts court, five were rendered by a 5-4 vote, one by a 6-3 vote, and only one by a unanimous vote. The divided cases cut along liberal/conservative lines. In his dissent in one of those cases, McCutcheon v. Federal Election Commission (2014), Breyer was unusually frank:

Today a majority of the Court overrules [the] holding [in Buckley v. Valeo (1976) (upholding restrictions on individual contributions to candidates but striking down independent expenditures in campaigns)]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citizens United v. Federal Election Commission … today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

As for Citizens United (2010), there the court was so badly divided that Justice John Paul Stevens felt compelled to write a 30,104-word dissent. Joined by Ginsburg, Breyer and Sotomayor, Stevens wrote: “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.”

As a class of free speech cases, few if any have proven more divisive than those on campaign finance. Then again, the votes in a variety of other important First Amendment cases reveal a sharply divided Court, usually split along liberal-conservative lines. Consider, for example, the following cases across a broad range of free speech territory:

• Government employee speech: Garcetti v. Ceballos (2006)
• Student speech: Morse v. Frederick (2007)
• Union fees: Harris v. Quinn (2014)
• “Pro-life” centers and compelled speech: National Institute of Family and Life Advocates v. Becerra (2018)
• State action and free expression: Manhattan Community Access Corp. v. Halleck (2019)

Each of those cases was decided 5-4. Roberts was in the conservative majority in all of them.

This article is excerpted from a longer and more detailed report by the authors titled, “The Roberts Court: Its First Amendment Free Expression Jurisprudence – 2005-2020,” which will appear on the FIRE First Amendment Library website sometime this summer and thereafter in a scholarly journal.