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Free-Speech Formalism Is Not Formal


Legal formalism proclaims that cases can be resolved through the logical application of abstract rules or doctrines. Courts supposedly apply formal rules in an apolitical or neutral fashion. The conservative justices on the Supreme Court have increasingly adjudicated First-Amendment claims from a formalist perspective, particularly in cases focused on the democratic process. This Essay argues that formalism is not formal. Formalism cannot deliver on its own claim to political neutrality, to deciding pursuant to pure law. Law and politics always intertwine in Supreme Court decision making. Thus, political considerations have infused not only the legal profession’s widespread commitment to formalism but also, and perhaps more important, the Roberts Court’s First-Amendment decisions. A focus on the recent gerrymandering decision, Rucho v. Common Cause, demonstrates how formalism influences free-speech cases without being determinative. In the conclusion, the Essay argues that court-packing might be the only viable progressive response to the conservative bloc’s free-speech decisions undermining democracy.