Duncan Hosie (Stanford Constitutional Law Center) has posted The Polarized First Amendment in the Shadow of Citizens United (Yale Law Journal Forum) on SSRN. Here is the abstract:
This Essay presents new data on partisan polarization in lower-court implementation of the Roberts Court’s campaign-finance jurisprudence. Surveying more than 2,000 federal cases decided between 2005 and 2025 that raised First Amendment speech-clause challenges to a campaign-finance regulation, it builds a dataset to study judicial behavior toward a labile body of deregulatory First Amendment law. It then reflects on what this behavior reveals about the nature and health of constitutional democracy and adjudication as elite party polarization and bimodal sorting pervade Article III courts.
Among its findings: Democratic appointees ruled in a proregulatory manner in 72.3% of judicial acts and Republican appointees in 41.3%; the partisan gap scales with interpretive latitude, widening from 15.0 percentage points at the district courts to 32.7 at the courts of appeals to 81.5 at the Supreme Court; and intraparty appointee behavior measurably varies by appointing president, with President Trump’s nominees an outlier among Republican appointees due to their consistently deregulatory rulings. The more surprising finding is reactive. After Citizens United, Democratic appointees became markedly more protective of regulation, with their full-invalidation rate falling by over a third while Republican appointees’ rate held nearly constant. Democratic appointees thus moved against the formal direction that a binding and high-profile deregulatory precedent required.
The Essay explains this asymmetry through the concept of the “metonymic tripwire,” which tracks the creation of anticanonical law in constitutional culture and conflict. It contends that Citizens United acquired a cultural valence and symbolism exceeding its formal legal content by condensing an ideological project into a single interpretive term. When that meaning, built by nonjudicial actors and mediated by broader sociolegal forces, filtered back to the bench, it realigned judicial behavior beyond anything doctrine would predict. The Essay concludes by considering the implications of the documented Article III polarization on the fonts of judicial authority: specifically, law’s perceptible separation from politics, the reciprocal exchange between constitutional law and constitutional culture, and the capacity of the First Amendment to serve as a shared constitutional inheritance.
Highly Recommended!
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