A Model of First Amendment Decisionmaking at a Divided Court

Abstract

On First Amendment issues, today’s Supreme Court is arguably the most protective in the institution’s history. But the apparent libertarian consensus masks a surprisingly deep disagreement about the manner in which First Amendment decisions should be made. The Court’s Republican justices prefer an austere, formal approach in which logical conclusions are pursued to the farthest reach. The Court’s Democratic justices, on the other hand, would follow a more complex, contextual approach in which rules and standards are often custom-tailored to narrow factual domains. This Article models that divide. I demonstrate that the Court’s First Amendment case law over the past three decades has conformed to a small set of unspoken rules that I call “the four tenets.” These four tenets have defined First Amendment doctrine for nearly thirty years, and they are today so deeply ingrained that we barely notice them. Yet they do not represent a consensus position. Instead, the Court’s four Democratic justices stand prepared to break with the four tenets, and President Trump’s nominee could well supply the fifth vote. If that occurs, it will mean the end of an era in First Amendment law and the beginning of a new one.