Courage!
Courage!
  • Courage!

Getting into the Supreme Court brought to mind memories of grade school: Lots of waiting in lines, lots of earnest, well-intentioned guardians constantly reminding you of the rules, strictures such as, “Ladies, no gum or candy in the chambers” and “get rid of that newspaper.” There was also a requirement that we strip ourselves of all electronic equipment, which added to the childlike state.

We non-regular-journalist-types were placed at the far left of the room, behind large columns that restricted our line of sight somewhat, but I could see most of the bench if I leaned in the right direction. (The guys next to me were less lucky; they kept leaning over and asking me who was talking.)

The issues debated at the court today, as everyone by now knows, rise out of Doe v. Reed, the Washington-centric case that will decide whether signing a public petition is protected political speech—like voting—or if those signatures should be considered public documents under the Washington Public Records Act.

McKenna spoke for the state and defended the Public Records Act, arguing that allowing the public access to the petitions was consistent with Washington’s history of open and transparent government. His opponents, who spoke first, used the threat of intimidation if the signatures were made public as the centerpiece of their argument.

“No person should suffer harassment for participating in our political system,” said James Bopp, pro bono attorney for Protect Marriage Washington, the organization behind last year’s anti-gay Referendum 71.

Justice Antonin Scalia, a hard-right Reagan appointee, cut Bopp off midway through his third sentence—an act that immediately indicated the normal left/right battle lines wouldn’t be strictly adhered to in this case. (Scalia frequently speaks first in oral arguments, and his statements are often seen as an indicator of the direction the court’s conservative bloc is leaning.)

From the transcript, a bit of the history lesson—and more—that Scalia gave Bopp:

For the first century of our existence, even voting was public—you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for. The fact is 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, or to take part in the legislative process.
You are asking us to enter into a whole new field where we have never gone before.

The rest of the justices quickly piled on. Chief Justice John Roberts, another member of the conservative bloc, seemed to accept a central tenant of McKenna’s understanding of the case when he referred to Doe v. Reed as a “facial challenge,” which places a heavy burden of proof on Bopp.

As for the court’s liberal wing, it seemed to generally line up in opposition to Bopp’s contentions, with Justice Ruth Bader Ginsburg persistently challenging him throughout. But Scalia remained the most vocal opponent of the R-71 supporters’ case.

From another exchange he had with Bopp over why it might be important for citizens to know which other citizens are signing petitions that could create a law that will affect everyone:

JUSTICE SCALIA: What about just—just—what about just wanting to know their names so you can criticize them?

(Laughter.)

MR. BOPP: Well…

JUSTICE SCALIA: Is—is that such a bad thing in a democracy?

MR. BOPP: Well, what is bad is not the criticism, it’s the public—it’s the government requiring you to disclose your identity and belief.

JUSTICE SCALIA: But part of the reason is so you can be out there and be responsible for the positions you have taken.

MR. BOPP: Well, then why don’t they require both sides?

JUSTICE SCALIA: So that people — people can criticize you for the position you have taken.

MR. BOPP: Then why don’t they require both sides if that was the purpose?

JUSTICE SCALIA: What do you mean, “both sides”? The other side hasn’t signed anything.

MR. BOPP: The other side…

(Laughter.)

JUSTICE SCALIA: When they sign something, they will be out there for public criticism as well.

MR. BOPP: Okay. But this is a one-way street.

JUSTICE SCALIA: Oh, this is such a touchy-feely, oh, so sensitive about—about any—(Laughter). You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.

MR. BOPP: I’m sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats.

JUSTICE SCALIA: Well, that’s bad. The threats should be moved against vigorously, but just because there can be criminal activity doesn’t mean that you—you have to eliminate a procedure that is otherwise perfectly reasonable.

Not all of the court’s ascendant conservative wing took such unexpected positions. Justice Clarence Thomas remained silent throughout the case, which is typical. He hasn’t asked a question at an oral argument since 2006. Meanwhile, Justice Samuel Alito seemed openly skeptical of the need to make information about petition-signers publicly accessible. Alito asked McKenna why, if the petition records are digitized (and they are), the state couldn’t easily check for fraud on its own, perhaps by creating a website that voters could plug distinguishing personal information into to see if their names were falsely included.

All this isn’t to say that McKenna got off lightly. The justices grilled him as well, and Roberts, who had seemed to be lining up against Bopp at first, seemed to gravitate away from the pro-public-release side as the argument continued.

At one point, Scalia, still on a tear, asked McKenna why the people of Washington needed to check the petition records for fraud and error. Didn’t they trust their Secretary of State? (Secretary of State Sam Reed attended the argument with McKenna.) The Attorney General neatly summarized the people’s opinion as “trust, but verify,” to which Scalia responded, laughing: “I like that”.

At the post-argument press conference Bopp seemed slightly shaken, describing the case as “very troubling” and comparing it to the plight of African-Americans who were threatened by the Ku Klux Klan in the early 20th century. He warned that if the court ruled against him, every political consultant would make intimidation and harassment a part of their strategy in future initiative and referendum battles. “This is a slippery slope and it is very important our country doesn’t go that way,” he warned. “This is exactly how governments who want to control the people [act].”

McKenna seemed to feel that the argument had gone well, and he addressed concerns of intimidation by pointing out that the names of R-71’s backers had long been public, and they had reported no harassment. Reed concluded by reminding reporters that Washington’s anti-harassment laws are powerful, and would be used against anyone who violates them.

33 replies on “Doe v. Reed: Inside the Oral Arguments”

  1. This is great. I just wanted to say that, because this isn’t going to attract the howling zoo of shit-flinging monkeys that fill the other Slog posts (no pitbulls, no gays except by implication, no bicycles), but it’s substantial, well-written, and important. So, yeah. Thanks!

  4. >and comparing it to the plight of Africa-Americans who were threatened by the Ku Klux Klan in the early 20th century

    I think he mixed up his subjects. In the current case, it’s the KKK members who want to continue to create hate policy without their names getting attached to it.

  5. Agree with @1. I have to say, I haven’t followed this case all too closely, but I find the voting analogy Scalia made to be interesting. So, our votes used to be public, but we switched to private ballots (among other changes) in the late 1800s (by the way, if you are an elections history nerd, this is a pretty interesting article about those changes). So, why wouldn’t signing a ballot be considered the same as a “vote”? Why do we have a right to privacy with the vote but not with signing a petition that affects our laws? Why does signing a petition require “civic courage” but not voting? Is this the line of argument that the anti-transparency side is taking?

  6. Technically, our state has a right to privacy that’s stronger than federal inferred rights to privacy, but constitutionally, the right to privacy at the federal level was invented. Ours is actually in our constitution.

  7. “Justice Clarence Thomas remained silent throughout the case, which is typical. He hasn’t asked a question at an oral argument since 2006.”

    How is this possible?!?!?!?

    (great reporting btw)

  8. @4

    It’s also unlike those cases in that blacks fighting for their civil rights never asked for anonymity. In fact, they did everything they could to get their personal voices out into the public domain. They knew threats were a possibility and fought openly despite them.

  9. “The campaign manager of this initiative had his family sleep in his living room because of the threats.”

    Maybe it was because of “threats.” Or maybe it was just because he’s a paranoid crazy person.

    Also, pretty bizarre that he would even venture to bring up the Klu Klux Klan. I seem to recall something about wearing white hoods to keep their identities secret.

  10. @ 5, I think the circumstances matter. If the switch from public to private balloting took place in the late 1800s (specifically during Reconstruction), then it was because some voters (blacks) were actually and truly being targeted for violence. So far, nothing like that has occurred nor is there any reason to believe it will. After all, Prop 8 proponents didn’t suffer large-scale violence.

  13. @3

    Based on my, admittedly somewhat limited, following of the supreme court, oral arguments often involve laughter, usually from one of the justices using hyperbole or humor to make a point or knock down an argument.

  14. “Justice Clarence Thomas remained silent throughout the case, which is typical. He hasn’t asked a question at an oral argument since 2006.”

    jake perhaps next time you should poke thomas and get proof of life.

  15. “Justice Clarence Thomas remained silent throughout the case, which is typical. He hasn’t asked a question at an oral argument since 2006.”

    jake, next time poke thomas and get proof of life.

    good work. for once.

  16. I used to (and to some extent, still do) think Clarence Thomas a fool for never asking questions. But you know, I do appreciate 4 years of stubborness. I hope he goes 20 yrs without asking questions, I like that dedication.

  18. Amazing, that these hatemongers wish to impose their beliefs on others, and to do so in secret! Had these same champions of democracy legislated the banning of these same rights for African or, native Americans, no one would question the legitimacy of these same people, as we would then know they are insane haters that they are. No one would give them any mercy, as they should not! They are the new clan, self righteous, and trying to hide their faces behind a white veil of paper, called the Constitution.

    Sing it with me all: “Land of the free……………………………….”

  20. I have a tiny amount of respect for CT’s refusal to ask questions. Sometimes the justices get so off-track with ridiculous hypotheticals that his silence is a welcome change of pace.

    That said, I hate CT in every other regard.

    Also: “tenant”!?

  23. After the first Scalia quotation, I believe you mean “tenet” and not “tenant.”

    Unless someone is paying rent to live in Rob McKenna’s argument, of course, which would be…I don’t know…kinda creepy?

  25. Oh silly Supremes! Don’t they know that we in the US no longer debate issues? Don’t they know they are supposed to rule in lock step with the dogma of their assigned ideological affiliation? How quaint.

  27. Really, it’s not that surprising that Scalia came down on the side of the state. He’s a total fuckwad on many issues, but he’s pretty solid on issues such as transparency in government. And if i read one more case where he goes on and on and on about the found of our nation, i’m going to put a nail through my head.

  28. “He warned that if the court ruled against him, every political consultant would make intimidation and harassment a part of their strategy in future initiative and referendum battles.”

    A door which was opened by Bopp’s employers when they started telling lies about harassment and then backed it up with a Supreme Court case. They have no one to blame but themselves if this prediction comes true.

  30. “every political consultant would make intimidation and harassment a part of their strategy”

    Consultants would start to promote illegal and criminal activity? What?

    But your point @28 is valid: lying that intimidation is being done by the other side is clearly a strategy. Although there *is* the reputation-tarnish problem of crying wolf all the time.

  31. I think it was the KKK that hid their identity behind the robes and hoods. Scalia has a vitriolic tongue, but does have a sharp mind on the constitution and legal history. [Maybe he should step down to spend full time writing a book or two ! 🙂 ]

    I hope Scalia sticks to his guns on his prediction in his Lawrence v. Texas dissent that that ruling would make it impossible to prohibit gay marriage! Just wait until Perry v. Schwarzenegger (Prop 8) hits the court, he’ll sing a different tune.

  32. Scalia is my second favorite right-leaning Justice (after Kennedy). Like Kennedy, Scalia has sided with the left in several cases involving the First Amendment, the use of foreign military tribunals, and the Fourth Amendment. Although Scalia is a very strong proponent of privacy rights at home, etc., he recognizes that people should forfeit those protections when they attempt to change public laws.

    Although a pro-disclosure ruling in this case could significantly affect the future of Washington State initiatives, it is unclear that the ruling would benefit liberals over conservatives. For example, a pro-disclosure ruling in this case might make it harder for activists to find signatures for the Washington State marijuana legalization initiative, which is trying to make it on the ballot later this year.

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