Evaluating Supreme Court Nominees

We might distinguish between two grounds for evaluating Supreme Court nominees. The first is technocratic. Is the nominee excellent? Does the nominee have relevant knowledge and experience? The second ground is political. How is the nominee likely to vote? How does the nominee approach the Constitution? (The word "political" is too crude, because no nominee is likely to approach the law in simple political terms; but let's put that issue to one side.)

On technocratic grounds, the following recent nominees were obviously outstanding: Roberts, Breyer, Ginsburg, Scalia, and Bork. (Douglas Ginsburg belongs in that category as well.) No one could doubt the ability and relevant experience of these nominees. Their records clearly demonstrated that they were first-rate. The same could be said of several other recent nominees as well.

On political grounds, Judge Bork was of course found unacceptable by a majority in the Senate, and Republican leaders made it clear to President Clinton that they would reject some people on his list; they also indicated that Breyer and Ginsburg were sufficiently moderate. (Let's put to one side the intense debates about whether Breyer and Ginsburg are in fact moderate; at least it can be said that they do not share the liberal views of William Brennan and Thurgood Marshall.) For their part, many Democrats concluded that Chief Justice Roberts was well within the acceptable range.

What about Harriet Miers? She might be superb, but her record and experience certainly do not compare to those of recent nominees. She has neither been a judge nor had much experience with the Supreme Court itself. There's nothing comparable to the appellate work of Chief Justice Roberts, or the judicial and academic work of Breyer, Ginsburg, Scalia, and Bork. Even Souter and O'Connor, with their thinner records, had judicial opinions to evaluate.

On political grounds, there are at least equivalent questions. We appear not to have any sense of her general approach to constitutional law. From the public record, it was possible to give at least a rough and general evaluation of all or almost all of the recent nominees. Apparently that's not true here.

A reasonable conclusion is that this nomination should be viewed with uncertainty and puzzlement. A silver lining: The uncertainty and puzzlement should not divide people along political lines.

Comments

[Richard L. Bowler]

When I was the Law Librarian at the Law School I had the job for the ABA of collecting Mrs. O'Connors judicial opinions from the Arizona Court of Appeals during her nomination process. As I remember there were 32 of them. That was also about the number of minutes it would take to read all of them. They were all formal and unreasoned. Her opinions provided no insight into her judicial experience at that time.

Dick Bowler JD '67

[Stevethepatentguy]

Looking at Miers' background I am struck by the similarity to Rehnquist. Rehnquist worked in private practice and supported the Republican party in Arizona, he was a legal adviser to Goldwater in 1964 and came to Washington and served in the Nixon administration in the Office of Legal Counsel. Nixon the selected Rehnquist to replace Justice Harlan.

I don't think that a post hoc examination of Rehnquist's career shows him to be less than outstanding on technocratic grounds. There will be a long debate on his political acceptability.

[Niels Jackson]

On what grounds does one say that Ginsburg and Breyer are less liberal than Marshall and Brennan? On all the hot-button issues -- abortion, affirmative action, gay rights, federalism, Commerce Clause -- they are a predictable part of the liberal wing of the Court. On church-state, Breyer is a bit less liberal and more unpredictable, but Ginsburg is not. The only areas I can think of where they are less liberal are 4th Amendment jurisprudence and the death penalty, but even there, Ginsburg and Breyer definitely tend to vote in a liberal direction (i.e., instead of being a knee-jerk vote against the death penalty, they merely vote not to allow executions of low-IQ people or 17-year-olds. Not quite as liberal, but still liberal.)

As for a wide range of issues -- such as Miranda, Mapp, etc. -- Ginsburg and Breyer don't have to be as gung-ho about expanding constitutional protections, because most of that work was already done by the Warren and Burger Courts. All they have to do is believe in stare decisis, and that effectively makes them liberals on many issues.

[Dale Carpenter]

I agree with Cass.

I would add that this nomination, at this early stage, looks like the effort of a president to put a friendly face on the Court to deal with particular problems the administration imagines right now it will have in the near future. Questions of executive power and privilege (e.g., holding detainees indefinitely without trial, what process is due to them) will continue to be issues as long as we're fighting this war on terror. It's easier to pick a friend who won't betray you than a philosophy that might.

A president who picks close associates with little or no judicial experience in the face of looming constitutional issues near and dear to the administration. Who does this sound like? Three letters: F.D.R.

[Dan the Man]

On what grounds does one say that Ginsburg and Breyer are less liberal than Marshall and Brennan?

Nice to see you left out practically the entire First Amendment except for church/state separation.

But it's actually pretty simple to find out how Ginsburg/Breyer is less liberal than Brennan/Marshall. It is generally believed Stevens is the most liberal Justice on the Supreme Court. Now since Stevens served when Brennan/Marshall was on the court, just take any decision where Brennan/Marshall were to the "left" of Stevens and one can take that (as a rough guess) on places where Ginsburg/Breyer is less liberal than Brennan/Marshall. And there were a lot of decisions where Stevens is less liberal than Brennan/Marshall.

[erd]

If the issue is this appointee, and not the past Supreme Court justices, isn't it relevant that she has very little appellate experience (something like 20 reported cases in Lexis)? For a 60 year-old attorney, that's very little, and almost none seem to be in areas the Supreme Court hears cases. Nor are any in the area of criminal law/criminal procedure. This is not an impressive record, even accepting that not everyone appointed to the Court has to be from Harvard or Yale. I can think of public defenders with more constitutional experience than this. Doesn't that matter? Is it irrelevant to an analysis of her appointment that she made her greatest professional strides -- including becoming managing partner and officer in various bar associations-- after she hooked her cart to GWB's horse sometime in the 1980s? I'm not sure that even on technocratic grounds she wins a pass.

[Todd Henderson]

Two observations about Miers. First, I share Prof. Sunstein's puzzlement at the choice. Bush spoke often and consistently on the campaign trail about the kind of justices he would appoint if given the chance. Academics like to talk about how judges are less accountable politically since they are unelected, but Bush (with help from critics on the left) put the Supreme Court front and center as a key issue in the campaign. His choice of Miers (and to a certain extent Roberts) can be viewed as a broken campaign promise akin to his father's breach of the "Read My Lips" pledge. My friends on the Right assure me that this may cause an irreparable breach with the president. If true, it makes the political calculus that much harder to understand. My colleague David Strauss suggested the other day at a Law School event that "a Hispanic is the only logical choice" for a diversity appointment. Apparently not.

Second, insiders are telling me that the president's rather hard line claim to executive privilege on attorney memos may be in trouble in this case. One could argue that the SG memos written by Roberts were off limits because there were other documents, legal opinions, and academic articles from which to create a fair picture of his approach to law. By nominating Miers and (I'm guessing) maintaining a hard line on not disclosing her memos as WHC to him, the president is in an untenable position. If I were a Senator opposed to her nomination (and willing to embarrass the president) I would be screaming for those memos, to which the president has arguably opened the door.

It remains to be seen whether the scuttlebutt from the VRWC that has been building all day will rise to a level of political saliency. Until we know that, many of us will keep scratching our heads.

[Niels Jackson]

Dan the Man: Got any specifics in mind?

You mention the rest of the First Amendment, as if that were some kind of refutation of my point. Well, free speech is an odd duck: It used to be that "liberals" voted for free speech most often, but these days it's the conservatives (except for Rehnquist) who most often vote for freedom of speech. Anymore, I don't know how one is supposed to rank "conservativeness" or "liberalness" when it comes to speech.

Free exercise -- same question -- is a robust free exercise doctrine liberal (a la Brennan and Marshall dissenting in Smith) or conservative (a la Michael McConnell)? I guess you could pinpoint Ginsburg, who joined the majority in Boerne v. Flores, as one example of one vote that wasn't as "liberal" as Brennan and Marshall were. (But note that Breyer dissented in that case.)

[Niels Jackson]

Or if you want to get really confused, compare Stevens' concurrence in Boerne v. Flores -- arguing that it was unconstitutional to allow any statutory exemptions on behalf of the free exercise of religion -- with Brennan's opinion in Sherbert v. Verner, which essentially argued that many such exemptions are constitutionally compelled. Which one is more "liberal"? Depends on whether you think "liberal" means "robust free exercise" or "robust Establishment Clause."

[Dan the Man]

"Dan the Man: Got any specifics in mind?"

Why don't you just look it up yourself? Or are you just too dense or lazy to do it?

"You mention the rest of the First Amendment, as if that were some kind of refutation of my point."

Well, duh, it is.

"Well, free speech is an odd duck:"

Oh, ok, so you are dense. One obvious example is the ability to use zoning laws to restrict stripping clubs and porn stores. The "liberal" justices thought it was quite a bad ruling while Stevens was the one wrote it.

"It used to be that "liberals" voted for free speech most often, but these days it's the conservatives (except for Rehnquist) who most often vote for freedom of speech."

Gosh, you are dense. All of the conservative justices support the zoning ruling and several support more expansive interpretations of it.

"Anymore, I don't know how one is supposed to rank "conservativeness" or "liberalness" when it comes to speech."

Oh, ok. So you're too inept to figure out what it out. That explains a lot about you.

"Dpends on whether you think "liberal" means "robust free exercise" or "robust Establishment Clause."

You're a riot. YOU were the one who already said "On church-state, Breyer is a bit less liberal", so why are now pretending like it's so difficult to figure out what is liberal/conservative on church-state issues when you had no problem before?

[Neil the Ethical Werewolf]

Dan, if you could provide some specifics, that'd be nice. I am too lazy to look it up, and besides, I'm not a lawyer and it might take me longer to figure out where to look than it'd take you.

I humbly offer "ideological" as a substitute for "political" at the top of the above post.

[Lexington Green]

The Beldar Blog post on the subject is probably right on the money, since it looks at this in terms of Bush 43's usual approach to things. Bottom line seems to be, he felt he needed a female lawyer, and he knows and trusts this lady to be the kind of judge he wants to see, so he picked her.

Also, tactically, by picking an unexpected nominee, he has neutralized all the opposition research and prepared questions, press releases, speeches etc. that the Democrats have been assembling for years to use when someone like Judge Edith Jones was nominated. Also, Bush clearly sees the advantage of a nominee with a minimal paper trail, if you want avoid giving your political adversaries any ammunition. Now they have to scramble to find a way to destroy this nominee, with very little to work with. So, Bush obtains an edge he would not have with a more orthodox pick.

The Beldar post is here:

http://beldar.blogs.com/beldarblog/2005/10/the_miers_nomin.html

[Niels Jackson]

Dan:

You're good at insults, but short on legal knowledge.

In point of fact, look here: http://www.law.ucla.edu/volokh/howvoted.htm
The most pro-free-speech Justices are Kennedy and Thomas. Then, in order, you have Souter, Stevens, Ginsburg, Scalia, O'Connor, Rehnquist, Breyer. Plainly, both conservatives and liberals are all over the map on free speech these days. That's why it doesn't make a whole lot of sense to pretend that free speech is a simplistic, black-and-white issue of liberals vs. conservatives. It's simply not.

[Dan the Man]

Dan: You're good at insults, but short on legal knowledge

Niels Jackson, you're good at being stupid and you're very good at being stupid. Congratulations.

In point of fact, look here: http://www.law.ucla.edu/volokh/howvoted.htm

Oh, thanks for that link from Professor "some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness" Volokh. Guess he took time off sticking plungers up people so that he could write that article. Good for him.

Plainly, both conservatives and liberals are all over the map on free speech these days.

Actually, it's hard not to know what's going on (but for some reason you are too dim witted to see it). Conservatives generally hate sex speech and take a dim view of other free speech cases except for campaign related cases where they're much more likely to strike down such laws. Liberals are exactly the opposite.

Professor "some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness" Volokh's attempt to ignore these obvious tendencies by invoking such catch phrases as "free speech maximalist/minimalist" is either dense or deliberately misleading on his part.

[Niels Jackson]

Dan: You obviously have no idea what you're talking about, which is why you are forced to rely on empty insults. Volokh allegedly supported torture -- and that is supposed to discredit his statistics on how Justices voted in free speech cases? That's just an adolescent ad hominem.

You say: "Conservatives generally hate sex speech and take a dim view of other free speech cases except for campaign related cases where they're much more likely to strike down such laws. Liberals are exactly the opposite."

Again, you have no idea what you are talking about. Kennedy and Thomas take a pro-free-speech view in all types of cases -- including "sex speech." Look at Ashcroft v. Free Speech Coalition. (If you are capable of reading a Supreme Court decision, that is.)

[John Finley]

The comparison between Miers and Rehnquist is false. It may be true that Miers served in the Executive and Rehnquist served in the Executive, but it is also true that Miers and Rehnquist both graduated at the top of their law school class. The difference in the latter comparison is that Rehnquist attended Stanford Law, whereas Miers attended a third-rate law school. The difference in the former comparison is that Rehnquist served in the Office of Legal Policy, which grapples with abstract federal constitutional questions of the sort litigated in concrete cases before the Supreme Court, whereas Miers served as President Bush’s lawyer, a position she obtained simply because she knew him. It is also true that Miers worked for a politician and Rehnquist worked for a politician, but it is untrue that President Bush was the intellectual architect of the Republican Party that Barry Goldwater turned out to be. In other words, there is no comparison.

[Stevethepatentguy]

Rehnquist graduated from Stanford Law in 1952. The law school was founded in 1948 so Rehnquist was probably in the second graduating class. Rehnquist quipped that the application process consisted of sending in a check (I looked for a quote, to no avail). Was there a difference in standing between SMU and Stanford at that time? I have no idea.

I stated that their backgrounds were similar not that Miers would be a legal titan on the order of Rehnquist, who I would argue was the most important jurist of the last 50 years. Miers background is also similar to John Marshal who was appointed by his friend John Adams. Marshall continued to serve as Adam's Secretary of State. On the other side of the coin is Abe Fortas (Johnson’s personal lawyer and perhaps the worst Justice of the last 50 years) who was a crony appointment of the first order.

My point, unclear as it may have been, was that the path to the Supreme Court is not a great indicator of what type of Justice one will be. Top of the class at SMU is clearly smart enough to understand any issue that will come before the Court. If you want an intellectual to lead a broad national debate, I think you can look to Bork and Douglas Ginsberg. I think that Bork and Ginsberg were probably the most likely intellectual pioneers to be nominated, and they would have been outstanding Justices. However, they didn't pass Professor Sunstein's political acceptability test.

And another thing, SMU is currently a second rate law school, not that I have any affiliation.

[Reagan went to Eureka College]

Someone posted: "And another thing, SMU is currently a second rate law school . . ."
Says who?
The best thing about this appointment, to my mind, is that it's a smack in the face of eliteism. There are many Harvard/Yale attorneys who are second rate, and many "second rate law school" attorneys who are head and shoulders above their Harvard/Yale (and to a much lesser extent Chicago) peers. Who cares about where she went to school?

[Dan the Man]

"You obviously have no idea what you're talking about, which is why you are forced to rely on empty insults."

You obviously are a dimwit. That's why you're a dimwit.

". Volokh allegedly supported torture -- and that is supposed to discredit his statistics on how Justices voted in free speech cases?"

Uh, I never said that. Stop being so retarded ok?

"Kennedy"

Uh, Kennedy's typically described as a "moderate" or "conservative-moderate." See the word moderate in there? I'll give you a second.

...

See the word moderate in there?

"Thomas take a pro-free-speech view in all types of cases -- including "sex speech.""

Thomas is pro-free speech in 2 cases: campaign finance and porn. Only in the porn cases does he vote non-conservatively. Otherwise, he's a pretty standard conservative in free speech cases. Like, sheesh, the guy thinks if you work for the government and you belong to a different political party than your boss, your boss should be able to fire you. It's pretty obvious he's not pro-free seech in that case.

[Niels Jackson]

Dan,

Good thing you aren't using your real name here. Embarrassing to be shown up as so utterly ignorant.

"Thomas is pro-free speech in 2 cases: campaign finance and porn."

Wrong, wrong, wrong.

Hill v. Colorado: Abortion protestors. Court upholds statute regulating them. Scalia, Kennedy, and Thomas dissent -- they're the only ones who cared about free speech in that case.

Thompson v. Western States Medical Center: Pharmacies were banned from advertising compounded drugs. Court struck down based on free speech. In the majority were Thomas, O'Connor, Scalia, Souter, and Kennedy. Dissenting were Rehnquist, Breyer, Ginsburg, and Stevens.

Watchtower Bible and Tract Society v. Stratton: a prohibition on "canvassing" without a permit from the mayor. Court struck it down. Everyone joined the majority except for Rehnquist.

Rosenberg v. Rector: University funded all sorts of student groups except for one religious group. Court held that the university was discriminating and thereby violating the First Amendment. The majority were all the conservatives: Rehnquist, Kennedy, Scalia, Thomas, and O'Connor. Dissenters were all the liberals: Souter, Ginsburg, Breyer, and Stevens.

McIntyre v. Ohio Elections Commissions: Anonymous leafletting. Court struck down regulation. Scalia and Rehnquist dissented, but Thomas joined the majority.

So, if you have any intellectual honesty at all, you'll have to revise your statement to read: "Thomas is pro-free speech in lots of cases: campaign finance, porn, anonymous leafletting, equal treatment of all speech by student groups at a university, door-to-door canvassing, advertising, and civil rights protestors."

By the way: Texas v. Johnson. 1989 case involving flag burning. The majority striking down the law was Brennan, Scalia, Kennedy, Marshall, and Blackmun. The dissenters were Stevens, Rehnquist, O'Connor, and White. Just try to explain which side was "liberal" in that case.

Now, put up or shut up. If you disagree that Kennedy and Thomas are the most in favor of free speech, and that Breyer is the worst on that issue, put up or shut up. Name the cases that show why Volokh's analysis is wrong.

[Neil the Ethical Werewolf]

Thanks, Niels.

[Dan the Man]

"Good thing you aren't using your real name here."

Too bad your inability to read English is so obvious from your stupidity.

""Thomas is pro-free speech in 2 cases: campaign finance and porn." Wrong, wrong, wrong."

You're gibbering. Only two of the cases mentioned involve campaigns and none of them involve campaign finance and porn so the quote doesn't apply. Duh. You really are stupid aren't you?

"Watchtower Bible and Tract Society v. Stratton, McIntyre v. Ohio Elections Commissions."

Uh, Dork-brain, see the word "campaign related" above? Hit control-F if you don't.

"Rosenberg v. Rector"

OK. You got me there in forgetting an extra category in which conservatives are pro-free speech. So that should be: Conservatives generally hate sex speech and take a dim view of other free speech cases except for campaign related cases and religion related speech (especially when it's versus the establishment clause) where they're much more likely to strike down such laws.

"Hill v. Colorado"

What I said abut religion related speech applies here.

"Thompson v. Western States Medical Center"

That's one exception to what I said.

"Just try to explain which side was "liberal" in that case."

Of course, those who vote to strike it down. Duh. Just look at the fact that the real "liberals" Brennan, Marshall, and Blackmun voted to strike it down.

"Name the cases that show why Volokh's analysis is wrong."

Uh, I never said Professor "some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness" Volokh's "analysis is wrong." Duh. Stop being so retarded ok?

[PLM]

When I first considered law school in the late 1950s, I decided I wanted to go to school on the West Coast, and preferably in the Bay Area. The prevailing view then? Stanford was a good school, but why pay tuition when one could go to a better school tuition free--Boalt. Rehnquist may well have been correct in claiming that sending a check was the most important step in admission to Stanford. When I did eventually go to Boalt in 1960, there were 700 applications, 500 of which were accepted, 300 showed up and 200 graduated. Very selective! Dean Prosser actually used the "look to your left and right, one of you won't be here next year" canard, but he was correct, the guy to my right didn't make it.

[Niels Jackson]

OK, Dan, you're obviously just a troll. You think that Watchtower is a campaign case? It's about Jehovah's Witnesses. (Everything else you say is similarly ignorant or stupid.)

[Dan the Man]

Actually you're right. Watchtower isn't an election case. Thanks for pointing that out. See that's the difference between trolls(like you) and non-trolls(like me). Non-trolls admit when they make a mistake. I still don't know if you realize Kennedy is typically described as a moderate or conservative-moderate.

Here is the evidence that my division of liberal/conservative attitutes of free speech is a good categorization using Volkh's chart.

Rehn Steve O’Con Scali Kenne Souter Thom Ginsb Breyer
1 0 1 1 1 1/3 0 1 0 0 E Republican Party
0 1 1 1 1 1 1 1 1 E Watchtower Bible
0 1 1/6 0 1/3 1/3 0 1/3 1/6 P Ashcroft
0 1 0 -1/3 1/3 1 0 1 2/3 P Los Angeles
0 0 1 1 1 1 1 1/3 0 0 O Thompson
0 1 1/2 0 1 1 5/6 1 1 P Ashcroft
0 0 0 0 0 0 0 0 0 O Thomas
2/3 1/3 2/3 2/3 2/3 1/2 8/9 1/3 1/3 O Lorillard
2/3 0 0 1 1 0 1 0 0 E FEC
1 1 0 1 1 1 1 0 0 O U.S. v.
1 0 1 1 1 0 1 0 2/3 R Good News
0 1 2/3 0 1 1 0 1 2/3 O Bartnicki
0 0 0 0 0 0 0 1/3 0 O Shaw
0 1 0 0 1 1 0 1 1 O Legal
0 1 -1/3 1/3 1 -1/3 1/3 -1/3 -1/3 O L.A. Police
1 0 1 1 1 0 1 0 0 R Boy Scouts
0 0 0 1 1 0 1 0 0 R Hill
1 0 1 1 1 1 1 0 1 E Cal. Democratic
0 1 0 -1/3 1 1 2/3 1 0 P United States
0 1 0 -1/3 0 1/2 -1/3 1 0 P City of Erie
0 -1/3 0 0 0 -1/3 0 0 -1/3 O Bd. of Regents
0 -1/3 0 1 2/3 0 1 -1/3 -1/3 E Nixon v. Shrink
2/3 1 1 1 1 1 1 1/3 1 1 O Greater New Orleans
1/3 1 1/3 1 1 1 1 1/3 1 1/3 E Buckley v.
0 0 0 -1/3 0 1 -1/3 1/3 0 O NEA
0 1 0 0 0 1 0 1 0 E Ark. Educ.
1/2 1 1/2 1 1 1 1 1 1 P Reno
1 0 0 1 0 1 1 1/3 0 0 O Glickman
0 0 1 1 0 0 1 1 0 O Turner Broad.
0 1 0 0 0 2/3 0 1 0 E Timmons
1/2 1/2 1/2 1 1 1/2 1 1/2 0 R Schenck
0 2/3 1/3 0 1 2/3 0 1 2/3 O Denver Area
1 1 1 0 1 1 0 1 1 O O’Hare Truck
1 1 1 0 1 1 0 1 1 O Bd. of County
1 0 1/2 1 1 1/2 1 0 1/2 E Colo. Republican
2/3 1 2/3 2/3 1 2/3 1 1/3 1 2/3 O 44 Liquormart
2/3 0 1/3 1 2/3 1/3 1 0 1/3 E Morse v. Republican
1 0 1 1 1 0 1 0 0 R Rosenberger
1 0 2/3 1 1 2/3 1 0 2/3 R Capitol
0 1 0 0 1 1 0 1 0 O Fla. Bar
0 0 0 0 0 0 0 0 0 O United States
1 1 1 1 1 1 1 1 1 O Hurley
1 1 1/3 1 1 1 1 1 1 1 O Rubin
0 1 1 0 1 1 1 1 1 E McIntyre
0 1 1/2 0 1 1 0 1 1 O United States
1 1 0 1 1 1 1 1 1 O Lebron
1 1 1 0 1 1 0 1 1 P United States

Rehn Stevens O’Conn Scali Kennedy Souter Thomas Ginsb Breyer
3 2/3 4 2/3 4 1/6 7 7 1/3 6 1/2 8 1/3 4 2/3 3 5/6 Campaign laws
1 1/2 7 2 1/6 0 4 2/3 5 5/6 2 1/6 6 1/3 3 5/6 Porn
4 1/2 1/2 4 1/6 6 6 1 1/6 6 1/2 1 1/3 Religion related
9 13 1/3 9 1/2 9 1/3 14 2/3 14 1/2 11 2/9 12 2/3 10 Other
19 2/3 26 1/6 21 23 1/3 35 28 2/3 28 13/18 25 1/6 18 2/3 Total

I divided the cases into 4 cases:
1) Campaign laws: conservatives strike down these laws. Liberals don't.
2) Religion related: conservatives strike down these laws. Liberals don't.
3) Porn - Liberals strike down these laws. Conservatives don't.
4) Other cases. Liberals strike down these laws. Conservatives don't.

In the above chart
1) Campaign laws = E
2) Religion related = R
3) Porn = P
4) Other cases = O

Kennedy is a free-speech maximalist while Breyer is a minimalist and they acted like it the above cases.

The three "conservatives" are Thomas, Rehnquist, and Scalia. O'Connor is the conservative-moderate.
The three "liberals" are Stevens Souter and Ginsberg.

In case 1, it's pretty much of a mess.
In case 2, liberals are at least as pro-free speech as the conservatives.
In case 3, conservatives are at least as pro-free speech as the liberals.
In case 4, liberals are at least as pro-free speech as the conservatives.

So in fact, except for the exception of case 1, the judges acted in the way I predicted. So it's pretty obvious the Neils are all wet.