Dear Dahlia and Walter,
Today, the World Cup moves into the knockout round. This marks the point at which people stop complaining exclusively about the referees and start complaining as well about the inherent arbitrariness of using penalty kicks to break a tie. Penalty kicks are dramatic, but they are hard to love. After more than two hours of a team sport, a few random individual kicks will dictate the outcome. The problem, of course, is that there is no good alternative. While I was fascinated by the marathon fifth set at Wimbledon, I am not sure playing until one team drops from exhaustion is the way to go. In all events, as we head into the weekend, I thought I would share a couple of random kicks of my own.
Walter makes an interesting point about the First Amendment interest at stake in Doe v. Reed, Thursday's decision about the forced disclosure of information concerning individuals who sign a petition to get a referendum on the ballot. Generally, we expect actions with legislative consequences to be taken on the public record. Asserting a right to privacy over such actions seems anomalous. But one of the interesting things about this case is that the state's interest on the other side of the ledger is also a bit unusual. The court identifies the state's interest in disclosing the names primarily as in preventing election fraud. The state certainly has an important interest in doing so, but it is not at all clear that is what this disclosure law was designed to do. After all, the law at issue, Washington state's public-records act, is not a provision of the election code specifically designed to fight election fraud. Instead, the law is essentially a state-version of FOIA—the Freedom of Information Act—which makes all public records subject to disclosure. It just happens that once signatures are submitted to the Secretary of State, they become public records subject to disclosure. As Justice Alito points out in his concurrence, Washington State had referenda for 60 years before it passed the public records act without any evident problem with fraud. The Washington law really seems directed more at sunshine in government—keeping the secretary of state honest—than at rooting out what we traditionally might think of as election fraud.
But as Dahlia suggested in her post, what ultimately makes this case interesting and difficult is the Internet. If all that was at stake here was whether someone could make a FOIA request and then read the results in the privacy of his or her home as a sleep aid, I am not sure this would have been a constitutional, let alone a Supreme Court, case. The potential for a FOIA requester to turn around and put the signatories' names and addresses on the Internet for all to see is what really changes the calculus. Justice Scalia invokes the image of the New England town meeting where the sturdy yeomen of democracy were willing to stand up and be counted. But you wonder whether even hardy New Englanders would have been indifferent to having their votes recorded for all the world to see and for posterity as well. The problem is certainly not limited to voting. I do not much care if people see me walking into a bricks and mortar store or even look into my shopping cart to see what I have bought. All of my actions take place in public, and it does not occur to me that I have much in the way of a privacy interest. On the other hand, if some company can start aggregating all my Internet purchases and know exactly which sites I go to and how often, the issue becomes a lot more complicated. There is, after all, a big difference between having a private e-mail exchange with a couple of friends and having the whole e-mail chain posted on the Internet. Oh, wait a minute, scratch that. In any event, I am not sure if privacy is even the right concept here, because whether or not the individual purchases are public at some level, it is the Internet's ability to aggregate data, make it available to every corner of the globe, and keep it there forever that raises distinct questions in this case. My guess is that such issues will occupy the court for years to come.
I also wanted to mention a decision that came down on Monday before we started this very public trialogue. The Supreme Court, by a 6-3 vote in Holder v, Humanitarian Law Project, rejected a First Amendment challenge to the material-support statute, one of the key tools in the government's efforts to use the Article 3 courts, as opposed to a military-justice alternative, to prosecute terrorism. While the decision itself is important, I want to focus on the fact that the vote was 6-3, and not 5-4. What kept this case from being a traditional 5-4 with Justice Kennedy joining the conservatives to uphold the government? Two words: Justice Stevens. It would be interesting to speculate what tipped the balance for Justice Stevens in this case. We are left to speculate because Justice Stevens joined the Chief Justice's opinion for the court in full—no separate concurrence emphasizing the narrowness of the court's ruling or what it does not mean. But speculation about the vote in this case aside, what is noteworthy to me is that this is not an isolated phenomenon. While most think of Justice Stevens as the very able leader of the court's liberal wing, he has broken with his liberal colleagues to provide a sixth vote for a seemingly conservative result in a couple of other high-profile cases. The Indiana voter ID case, Crawford v. Marion County Election Board, and Medellin v. Texas are just two examples. Although these were both sixth votes, not critical fifth votes, sixth votes matter, particularly with respect to how a case is perceived by the public. It was pretty hard to portray the Indiana case as Bush v. Gore II with Justice Stevens in the majority.
Those votes highlight two points worth remembering as we head into next week. First, as much as Justice Stevens has become a forceful and effective leader on the court, he has remained a unique justice with a distinctive voice to the very end of his tenure. Justice Stevens began his Supreme Court tenure as the justice most likely to write a separate opinion joined by no one else—and expressing a unique take on a case. Some of those lone dissents have become the law of the land; take a look at his 1997 dissent in United States v. Watts, a separate dissent from summary reversal no less, in which he lays out the basic argument that ultimately becomes Apprendi and its progeny. Others have remained the views of just one justice. But in all these cases, the court benefited from his unique voice. The second and related point is that anyone who thinks that replacing Justice Stevens with a soon-to-be-Justice Kagan will not affect the bottom line of any decisions or the court's dynamic cannot be that familiar with Justice Stevens' jurisprudence. Although the Kagan nomination seems to be getting drowned out by the BP spill, Gen. McChrystal (Walter, I think it is probably a good thing that Rolling Stone sticks to interviewing real generals), and, yes, even the World Cup, the Kagan-for-Stevens switch will have a real impact on the dynamic of the court.