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.
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