Is the First Amendment at Risk in the Court Packing Plan?

The current U.S. Supreme Court has been one of the strongest in history in protecting First Amendment rights. That is one reason for concern about calls for packing the Court growing among Democratic politicians. They seek to add another four Justices for a total of 13, overwhelming the conservative-leaning Supreme Court led by Chief Justice John Roberts.

There is more at stake here than political score-settling. In a frenzy to reverse the precedents of the Roberts Court, an expanded majority could unnecessarily reverse the Court’s protection of First Amendment rights. We’ll look at those issues in a moment. But first, we should take stock of the true character of this Court.

The Roberts Court Is Not a Rubberstamp for Trump or the Right

Rep. Jamie Raskin, Ranking Member of the House Judiciary Committee, recently charged that the Roberts Court is “robotically loyal” to President Trump and is radically revising law to fit a right-wing agenda.

It is true that this Court struck down Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022), sending the issue of abortion back to the voters in every state. But a majority during Roberts’ tenure also voted to make the legality of same-sex marriage the law throughout the land. Roberts himself voted against the majority in that case, but sided with the majority in extending Title VII’s protections against discrimination to gay, lesbian, and transgender people.

The Roberts Court – often joined by some of President Trump’s own nominees – has also ruled against Republican or conservative interests in several hotly contested cases.

One such recent example was the Court’s decision striking down most of the tariffs imposed by President Trump. And don’t forget the Court’s earlier decision in NFIB v. Sebelius (2012) upholding the “individual mandate” that was the heart of Obamacare.

But the true hallmark of the Roberts Court has been a scrupulous defense of speech, as well as the religious rights of individuals and groups that hold viewpoints at odds with the accepted orthodoxy of many officials.

Upholding Speech Rights

The Citizens United V. FEC (2010) decision struck down limits on independent political expenditures, finding that restrictions on independent campaigns are restrictions on speech. The Roberts Court struck down laws that criminalized the creation, sale, and possession of depictions of animal cruelty in United States v. Stevens (2010). The Court also outlawed viewpoint discrimination in government-issued trademarks in Matal v. Tam (2017).

Most recently, the Court 8-1 in favor of the speech rights of a therapist in Colorado who discussed conversion therapy with minors in Chiles v. Salazar (2026). In a concurrence joined by Justice Sonia Sotomayor, Justice Elena Kagan wrote that when a state suppresses “one side of a debate while aiding the other, the constitutional issue is straightforward.”

Striking Down Compelled Speech

On the issue of compelled speech, the Court in Americans for Prosperity v. Bonta (2021) struck down a California requirement that non-profits disclose their major donors, harking back to a principle from NAACP v. Alabama (1958): that anonymity protects donors from persecution – and today, from doxing.

In 303 Creative LLC v. Elenis (2023), the Court held that Colorado could not compel creators in expressive activity – in this case, a website designer – to craft messages that violate their religious or artistic convictions.

Upholding the Free Exercise of Religion

The Court also stoutly defends religious liberty – a key component of the First Amendment – ruling in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) that states must give religious schools equal access to otherwise universally available public funds and programs.

In the workplace, the Roberts Court protected the personal, midfield prayers of a high school football coach in Kennedy v. Bremerton School District (2022). Within faith organizations, the Court also prevented government from interfering with the employment decisions of religious institutions regarding their clergy.

In Little Sisters of the Poor v. Pennsylvania (2020) and similar cases, the Court recognized the right of Catholic nuns not to be forced by federal mandates to provide abortifacients and contraceptive coverage to employees in violation of their faith tradition.

There are many more such cases. Most of them involved government mandates that targeted people who hold minority views, or beliefs that are rejected by political elites in many states. In one case, the Court defended the speech rights of the Westboro Baptist Church, a hate group that strives to be as shocking, provocative, and reprehensible as possible. The Court has stood up for outsiders to mainstream culture, ranging from animal rights activists to nuns.

You may agree with, disagree with, or detest some of the viewpoints in these cases. But we are lucky to have a Court that understands that viewpoint discrimination by government is always the greater danger. Respect for the speech rights of the few is the best way to protect the speech rights of all.

Packing the Supreme Court could well bring in a majority that feels it has a mandate to reverse any and all of these cases.
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To learn more about the politics, policy, and law behind court-packing, watch  (starting at the 55-minute mark) or read the testimony of PT1st’s general counsel, Gene Schaerr, before the House Judiciary Committee.​