A MODEL OF FIRST AMENDMENT DECISION-MAKING AT A DIVIDED COURT

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 methodology. The Court's Republican Justices prefer an austere, formal approach in which logical conclusions are pursued to the furthest 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 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.

If the four Democratic Justices ever become five-or if a Republican supplies a fifth vote-it will mean the end of an era in First Amendment jurisprudence and the beginning of a new one.