Categorization and balancing: The United States Supreme Court's methodological dispute in twenty years of speech cases, 1972-1992.

摘要

Two methods of adjudication predominate in speech cases in the Supreme Court: Categorization and balancing. Categorization is based on speech content and involves protections according to a hierarchy of speech types. Balancing involves identifying and comparing interests to determine which litigant prevails.;Debate among Justices about the two methods persisted during the period studied. Kathleen Sullivan has offered hypotheses to explain the significance and impact of methods. One hypothesis has it that the choices of methods are independent of case outcomes, but represent rhetorical ("strategic") utility as Justices construct arguments against opposing factions. In this dissertation more than 200 Supreme Court cases were analyzed for Justices' roles, methods used, levels of scrutiny applied, values employed, and case outcomes measured in terms of expression protected or not. The primary question was whether Justices' choices of method were determinative of outcome, and if not, then what factor better explained outcomes.;Results support Sullivan's view of methods used strategically, but more importantly there were topical disagreements between Justices which persisted across cases regardless of methods and content in the cases. These are called "triggers of dissent." These are mostly unexplained, they result in uneven application of speech protections, and they divide the Court. Remedies may come from the broadly speech-protective "fortress model.".