How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.
In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:
- Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
- Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
- Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).
Now onto the tallies in First Amendment free expression cases:
Number of Majority/Plurality Opinions
- Justice Ginsburg: 3 out of 39 [Roberts = 13 & Kennedy & Scalia 5 each during same period]
- Justice Sotomayor: 2 out of 23 [Roberts = 9 & Kennedy = 4 during same period]
- Justice Kagan: 0 out of 15* [Roberts = 6 & Kennedy = 3 during same period] [*EK did not participate in 2 of the 17 cases decided during her tenure]
Number of Separate Opinions
- Justice Ginsburg: 5 out of 39 (2 dissenting opinions, 1 dissenting & concurring in part & 2 concurring opinions)
- Justice Sotomayor: 2 out of 23 (2 concurring opinions)
- Justice Kagan: 2 out of 15 (2 dissenting opinions) [*EK did not participate in 2 of the 17 cases decided during her tenure]
Total Number of Opinions by RBG, SS & EK
- 14 (includes total majority & separate opinions) [By contrast: CJ Roberts alone has authored 13 majority/plurality opinions]
Justice Ginsburg’s majority opinions
- Christian Legal Society v. Martinez (5-4, 2010) (1-A claim denied)
- Golan v. Holder (6-2, 2012) (1-A claim denied)
- Wood v Moss (9-0, 2014) (1-A claim denied)
Justice Sotomayor’s majority opinions
- Milavetz, Gallop, & Milavetz v. United States (9-0, 2010) (1-A claim denied)
- Lane v. Franks (9-0, 2014) (1-A claim sustained)
Thus, in the 15 such cases in which all the women Justices participated, they authored only one majority opinion (Lane v. Franks). (Justices Ginsburg and Sotomayor participated in 17 such cases during the same period and the number of majority remained the same.)
Record re 5-4 Majority/Plurality Opinions: Of the eleven 5-4 Roberts Court majority or plurality opinions in First Amendment free expression cases, only one was authored by any of the Court’s female members (Justice Ginsburg). There were six 5-4 judgments during Justice Sotomayor’s tenure, and four such judgments during Justice Kagan’s tenure.
(CJ Roberts leads in this area with 5 such opinions followed by Justices Kennedy and Alito with two apiece.)
Justice Ginsburg’s separate opinions Read More