Today's oral argument confirms that in 2010, your constitutional worldview has less to do with the color of your skin than the thickness of it. In a case about whether one's signature on a ballot petition can be kept secret, the Supreme Court splits quickly and sharply into the justices who recognize that politics is a contact sport and those who wish it could be more like an aromatherapy massage. Justice Antonin Scalia, whose hide is tougher than a rhino's, speaks for the blood-sport faction when he says that "running a democracy takes a certain amount of civic courage." Some of his more tender-skinned colleagues spend the morning shuddering at the very idea of public scrutiny of political processes. Arguments that should be about constitutional protections and speech morph quickly into argument about who's most afraid of the haters.
More than 20 states have some mechanism for citizen-driven legislation, either through ballot initiative or referendum. In 2009, when Washington state granted domestic partners "everything-but-marriage" rights, a group called Protect Marriage Washington submitted petitions, signed by 138,500 residents, calling for a referendum to repeal the law. Washington's Public Records Act makes those names a matter of public record in the interest of transparency and public inspection. But the signatories—citing harassment and threats against those who organized for Proposition 8 repealing gay marriage in California—asked a court to enjoin publication of their names. A federal court blocked the release of the signatures, but the 9th Circuit reversed, saying that the signatures are collected in public and shown to public officials and that the release of the names furthers the important governmental aim of preserving electoral integrity. Then the Supreme Court stepped in, halted release of the names, and took the case.
The issue in Doe v. Reed is whether the names of those 138,500 signatories should be kept secret. Since there are no actual facts in this case, just rank speculation over whether it's worse to be harassed by haters or unable to police state referenda, there is a lot of empty space at argument during which judicial nightmares can roam free.
James Bopp, representing the secret signatories, opens with the admonition that "[n]o person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs." Chief Justice John Roberts asks whether signatories to a less incendiary ballot initiative—say, one that involves a bond issue—would also be constitutionally protected. Bopp replies that even with regard to a bond issue, "with modern technology, it only takes a few dedicated supporters and a computer … to put this information on the internet, MapQuest it … and then encourage people to harass them," as occurred with the Proposition 8 supporters in California.
People often ask me how it is possible that Ruth Bader Ginsburg and Antonin Scalia are such good friends despite their ideological differences. Argument today illuminates what they have in common: They are both the Jurists of Steel. First Ginsburg lays into Bopp about the fact that the initiative's own sponsors sometimes sell their list of signatures for fundraising purposes, so the names are really only private with regard to the other guys. "So that would be the end of a person's privacy," she snaps.
Then Scalia tags in to ask, "Do you have any case in which we have held that the First Amendment applies to activity that consists of legislating or of adopting legislation?" Working himself into an Originalist froth, Scalia notes that "for the first century of our existence, even voting was public—you either did it raising your hand or by voice," and then scolds that "running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate." Scalia ends with the admonition that "[y]ou are asking us to enter into a whole new field where we have never gone before."
Ginsburg says that in his own brief, Bopp admitted that "you cannot tell anything about the signer's belief from the mere signature." It may signal support for the proposition or merely support for letting the people decide or a desire to get away from the signature collector. Bopp replies that "With all due respect, we do not say the third. We did say the first and the second." Ginsburg, looking as angry as I have seen her in a while, draws his attention to the page in his reply brief where all three arguments are laid out.
Justice John Paul Stevens, the model of civility, breaks in to ask the money question: "Wouldn't it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?" He adds, "Is there public interest in encouraging debate on the underlying issue?" Bopp replies: "It's possible, but we think this information is marginal."
This leads Scalia to bring down the house with: "What about just wanting to know their names so you can criticize them?" Scalia notes that the disclosure of your name is "so you can be out there and be responsible for the positions you have taken."
Bopp: "Well, then why don't they require both sides?"
Scalia: "What do you mean, 'both sides'? The other side hasn't signed anything."
Then Scalia, wiping his hands on his own thick skin blurts: "Oh, this is such a touchy-feely, oh, so sensitive. …You know, you can't run a democracy this way, with everybody being afraid of having his political positions known!" And while braver men have died trying to out-Scalia Scalia, Bopp retorts with equal fervor: "I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats!"
Washington's Attorney General, Robert McKenna, speaking for disclosure, would seem to have the easier task, but then he runs straight into the buzz saw that is the chief justice and Justice Samuel Alito imagining where public disclosure might lead.
Chief Justice Roberts asks, "If the State had a law that you could disclose voters and for whom they voted, would that implicate First Amendment interests?" McKenna says yes. Scalia stops him: "So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot? Do you really think that?"
Alito hops on: "I would like to know how far you want to go. You say in your brief that the availability of the referendum signature petitions allows Washington voters to engage in a discussion of referred measures . . . Would it be consistent with the First Amendment to require anybody who signs a petition to put down not just the person's name and address, but also telephone number, so that they could be 'engaged in a conversation' about what they had done?" Then Alito ups the ante: "Would it be consistent with the First Amendment to require anybody who signs a petition to list the person's religion?"
McKenna tries to explain that there is simply no evidence of violence, threats, or harassment in the record with respect to people who merely sign petitions. Scalia presses him on whether the ugliness following the Proposition 8 referendum in California suffices as evidence of threats. McKenna says it needs "to rise above criticism. I think it would have to rise to the level of threat and violence." Kennedy then asks whether the court should be assuming that the Secretary of State is not capable of detecting fraud and error in a ballot petition without the assistance of the entire public. McKenna replies that it's the public that has unearthed error on numerous occasions, and Scalia chimes in to say, "Sometimes the public may not trust the Secretary of State!" McKenna agrees. "That goes to the heart to the Public Records Act, Justice Scalia, trust but verify."
Scalia grins. "Trust, but verify. I like that!"
Alito unloads another string of scary hypotheticals about the kinds of personal, racial, and identifying information Washington state might demand on a ballot initiative and ends with a personal flourish: "You know, if somebody called your office and said, 'I would like the home address of all the attorneys who work in the office because we want to go to their homes and have 'uncomfortable conversations' with them …' " And again Scalia with the glove save cuts in: "Isn't that information—at least, the names of those people—isn't it probably public information anyway?"
This is the last argued case of the term and the last argument ever for Justice John Paul Stevens. Maybe it's fitting that he's largely quiet today. As the court's last great negotiator and bridge builder, he must be flummoxed by this new view of democracy that assumes the other guys want to hurt you so bad they shouldn't even be permitted to know what you're doing. When the benefits of attempting to engage and persuade are dismissed as "marginal," you have to wonder whether Stevens has left the court at just the right time. When there's no point left in "uncomfortable conversations," there's not much left for him to do at all.
Disclosure: I am on the steering committee of the Reporters Committee for Freedom of the Press, which filed an amicus brief in this case.