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?
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...
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.