The Roberts Court Constitution of Freedom of Speech: Preferences, Principles, and the Study of Supreme Court Decision-making

Since the appointment of Chief Justice G. Roberts to the U.S. Supreme Court, political scientists and legal scholars have assessed the Court’s behavior in a diverse array of cases and issue areas, including those touching on federalism, reproductive rights, voting rights, and economic liberty (cases involving businesses and corporations). Few issues have proven as vexing as the Court’s constitution of the First Amendment’s command “Congress shall make no law…abridging the freedom of speech…” In light of the Court’s ongoing constitution of the scope and coverage of the First Amendment, a narrative has emerged that paints the Court as distinctly conservative. In a number of widely publicized, controversial decisions, the Court under Chief Justice Roberts has incrementally dismantled federal and state efforts at campaign finance reform, made union fundraising more difficult, and restricted the availability of First Amendment protection for students, prisoners, and government employees. This explanation, however intuitive and prevalent, is complicated by another narrative. During the same period, the Court has issued incredibly speech-protective decisions in cases involving the distribution of videos depicting dog fights, violence in videogames, protesters at the funerals of fallen service members, lying about military awards, NGOs working abroad to address the AIDS epidemic, roadside signage, and even government employees. Adding another wrinkle to the fold is entire corpus of anti-speech claimant decisions that have been issued by a unanimous Court, or a Court divided in a way unexpected by the ‘liberals versus conservatives’ characterization of our nation’s highest tribunal. These dual storylines present a puzzle that motivate a set of interrelated research questions: What is the nature of the Roberts Court’s constitution of freedom of expression? Is judicial behavior within this politically salient issue area explained by the ideological preferences or attitudes of the justices? If not, what is the alternative explanation? And, more broadly, what are the limitations of the conventional means by which scholars study judicial behavior? This dissertation explores these questions through a set of conventional and innovative approaches to the study of judicial decision-making. It examines the entire universe of free speech decisions of the Roberts Court from external and internal approaches to the study of judicial decision-making. To do so, the dissertation employs a multi-method approach, including large and medium-N analyses of Roberts Court free speech decisions and qualitative tools of conceptual development and process tracing. This project offers four key findings related to the effect of judicial attitudes on the constitution of protection for freedom of expression during the Roberts Era. First, as indicators have incrementally improved upon accurately measuring a key concept of interest – the ideological direction of decisions in freedom of expression cases – the bivariate relationship between judicial attitudes and ideological voting becomes more tenuous. This suggests the need for a continuing research program focused on conceptually valid operationalization of decision direction in freedom of expression cases and beyond. Second, with the Rehnquist Court Era as a comparison point, the effect of judicial attitudes across all votes during the Roberts Era is statistically significant – stronger conservatism scores correlate positively with a pro-speech decision. While this relationship does not exist for the Rehnquist Court, a conceptual typology of cases comparing the ordering of voting coalitions to the direction of decisions in those cases reveals that the Roberts Court is, in some ways, less ideological than the Rehnquist Court Era. Third, through the tool of process tracing and the use of “hoop tests,” the Roberts Court is best understood as having a conservative orientation though not monolithically so – there is considerable heterogeneity in terms of the ideological orientation and conceptions of the judicial role held by the justices that frequently result in unexpected voting alignments. Fourth, the Court’s certiorari process in free expression controversies is better explained by jurisprudential concerns rather than ideological cues. However, once disaggregating the Court’s certiorari docket by issue area, there is evidence for both the ideological and legal explanations for the Court’s behavior in free expression decisions. The broader finding wrought from this project is that the judicial constitution of contemporary free expression protection in the U.S. cannot be reduced to single-cause explanations. The complex and often secret nature of various stages of judicial decision-making at the US Supreme Court, as well as the competing, longstanding epistemological approaches to understanding judicial behavior, strongly suggests that scholars must take care to question the assumptions of and examine behavior from both “internal” and “external” perspectives on Court behavior. Sacrificing the former at the altar of the latter leaves interested observers without a clear idea of the structure and language through which high politics is contested at the Court – a language that makes some claims possible and others untenable. The reverse is also problematic: Taking the justices at their word and assuming that fidelity to legal principles and sincerely-held conceptions of the judicial role explains judicial behavior ignores what appear to be patterns of partisan or ideologically driven voting. Beyond answering a substantive question of great interest for scholars, lawyers, litigants, and citizens alike, this research presents new directions for the study of judicial decision-making that have great potential for traveling to other issue areas and constitutional courts Syracuse University

The New York City Childcare Influenza Vaccine Mandate: A Case Study

Background. In 2014, New York City (NYC) became the third jurisdiction in the United States (US) to enact a childcare influenza vaccine mandate, after the states of New Jersey and Connecticut. The mandate was enacted by the NYC Board of Health by amending the NYC Health Code. The mandate’s goal was to increase vaccination rates among 6-59-month-olds attending city-regulated public and private childcare programs, including prekindergarten, to protect children, families, and the community against influenza. Children younger than 5 years are at high risk for severe illness and complications from influenza. Children are also known to be a major source of influenza transmission in communities. The mandate covered an estimated 122,430 children, representing approximately 24% (122,430/508,112) of all 6-59-month-olds in NYC. Five mothers brought a lawsuit against the mandate in November, 2015. In response, the New York State Supreme Court suspended the mandate in mid-December, 2015, in a ruling stating the NYC Board of Health did not have the authority to require a vaccine not authorized under state law. NYC appealed, but the suspension was upheld by the State Supreme Court, Appellate Division, in October, 2016. This court ruled that the NYC Board of Health had the authority to require the vaccine, but upheld the suspension because the mandate applied to city-regulated childcare, not all childcare in NYC, and, in their opinion, it wrongly allowed childcare programs to opt out of excluding noncompliant children by paying fines. NYC is preparing a second appeal and is also continuing to advocate for the New York State Legislature to add the childcare influenza vaccine requirement by changing state law. Objectives. This study had two aims. Aim 1 was to analyze the rationale and ethics of the mandate. The decision to mandate a childhood vaccine requires careful consideration because it infringes upon parental autonomy and can generate controversy that may undermine public acceptance of vaccines in general. Aim 2 was to assess the mandate’s effect on influenza vaccination rates among 6-59-month-olds citywide. The findings were intended to guide future decisions to enact childhood vaccine mandates. Methods. This research followed a convergent mixed methods study design in which qualitative and quantitative methods were used complementarily. A single-case study with record review was used to achieve Aim 1, along with an application of the Kass, and Field and Caplan conceptual frameworks to analyze the mandate’s ethics. For Aim 2, a short, interrupted time-series method was used to examine influenza vaccination rates among 6-59-month-olds as of December 31 in 8 annual influenza seasons before the mandate (2006-07 through 2013-14), 2 seasons during the mandate (2014-15 through 2015-16), and one season after the mandate’s suspension (2016-17). Vaccination rates were also assessed among a control group of 5-8-year-olds and among the aggregate groups of 6-59-month-olds and 5-8- year-olds stratified by one-year age groups. Results. NYC gathered and analyzed scientific evidence, reached out to community partners, and deliberated for nearly one year before deciding to seek enactment of the mandate by the NYC Board of Health. The decision was reached only after advocacy to add the childcare influenza vaccine requirement by changing state law was unsuccessful. The time-series analysis of vaccination rates showed the mandate had little impact on rates among the aggregate group of 6-59-month-olds. Among 4-year-olds, however, vaccination rates increased 11.4 percentage points, by far the largest increase among all age groups. The vaccination rate dropped by 12.1 percentage points among 4-year-olds after the mandate was suspended. Conclusions. The rationale for the mandate was strong based on evidence of the health and economic burden of influenza, increased vaccination rates reported by New Jersey and Connecticut, and the support of pediatricians, nurses, and pro-vaccine parents. Application of the Kass framework found the mandate ethical because it was enacted through a democratic process, applied to all 6-59-month-olds attending city-regulated childcare and prekindergarten, allowed for legitimate medical or religious exemptions, and was effective in raising vaccination rates among 4-year-olds. Based on the Field and Caplan framework, the mandate was ethical because NYC’s obligation for utilitarianism, beneficence, justice and nonmaleficence took precedence over parental autonomy in the context of the potentially severe disease of influenza. Despite the mandate’s suspension and subsequent loss of gains realized in raising vaccination rates, NYC was able to demonstrate the mandate’s success at increasing influenza vaccine uptake among 4-year-olds, the largest age group in childcare and prekindergarten. This evidence offers strong support for a change in state law to implement the childcare influenza vaccine requirement statewide. In the absence of such a change, alternatives to a mandate for increasing influenza vaccination rates among young children in NYC are needed

Half a Century of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, and Activism

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances

Generalized Lymphadenopathy in Homosexual Men

The cases of 90 homosexual or bisexual men with generalized lymphadenopathy were studied by epidemiologic, clinical, pathologic, immunologic, and genetic methods. The patients ranged in age from 20 to 52 years and had histories of multiple sexually transmitted diseases and both recreational and prescription drug use. Histologically, their lymph nodes showed three patterns: explosive follicular hyperplasia; follicular involution with expansion of the paracortical area; and a mixed pattern of follicular hyperplasia and follicular involution in the same lymph node. The frequency of HLA-DR5 was significantly increased in these patients (p < 0.005) compared with that in controls. All patients had impaired cell-mediated immunity. Opportunistic infections, lymphomas, or Kaposi's sarcoma subsequently developed in 15 patients who had had severe immune dysfunction for the previous 3 to 13 months. We suggest that generalized lymphadenopathy is part of the spectrum of a disorder manifested by acquired immunodeficiency, opportunistic infections, Kaposi's sarcoma, and malignant lymphomas

Corruption of virtue

My thesis, entitled "Corruption of Virtue" is comprised of two short works of fiction. Both feature a young man coming into adulthood affected by various social and personal factors. The first, entitled "Southern Hospitality" has a protagonist named Nick who grapples with his sexuality. Living in the American South, he knows many people view homosexuality as a sin, but he believes he has figured out how to survive in a bigoted environment. This fragile confidence is shaken, however, when he becomes the victim of a violent hate crime during a Tinder date. The story explores how the attack hinders his ability to navigate relationships with his best friend, his mother, and his potential boyfriend. The second story, entitled "Alcohol and Catholicism" features a protagonist named Matthew who learns, a couple weeks prior to Christmas, that his father, aunt and grandmother were physically abused by his grandfather. This knowledge taints his experience of the annual Christmas gathering, and after drinking too much he instigates a heated family argument. Throughout the story, he wonders whether his grandfather deserves forgiveness. I paired these stories together because they both feature protagonists of college age dealing with drastic challenges to their worldview. Catholicism is an important presence in both works. Both protagonists are forced to confront their relationship with the religion in these stories, Nick with regards to how it treats his sexuality, and Matthew with regards to how it affects his family's reactions to abuse. While the stories are similar, I consider them foils to each other because Nick responds to his trauma by giving up on hope and trust, whereas Matthew counts his blessings and accepts life's uncertainty and gray morality. Since these characters are limited to their own unique circumstances, which are vastly different in severity, it is for the reader to judge whether they were justified in their final decisions. The title of the thesis is drawn from a line toward the end of the second story. On one level, "Corruption of Virtue" signifies losing the innocence of youth after being faced with harsh reality. On another level, the title represents the corruption of virtue itself. When Americans refer to "southern hospitality," they consider it a virtue: the kindness with which Southerners treat everyone. In the case of my story, however, the label takes on a darker meaning. For a queer person raised in the South, "southern hospitality" is synonymous with bigotry and exclusion. In "Alcohol and Catholicism," the virtue of mercy is corrupted in Matthew's eyes because mercy as an obligation has forced his father to forgive his abuser, a potentially self-destructive act. My early literary influences include John Steinbeck and Zora Neale Hurston. I am inspired by how they write subtle political narratives using vivid characters and descriptive prose, focusing on storytelling while still conveying social themes. I admire my contemporary influences, including Nawal El Saadawi and Tsitsi Dangarembga, for the same reason. In my thesis stories, I strove to emulate these writers' vivid descriptions of scene, their complex character studies, and their inseparability from broader societal influence