At today’s Doe. v Reed oral arguments in front of the Supreme Court, attorneys posed the situation as a battle between democracy and the First Amendment — as if the two cannot, and do not, coexist together. Project Marriage Washington, which is fighting to keep secret the names of voters who helped put Referendum 71 on Washington State’s ballot, claimed releasing the identities would invite harm to people who just wanted to exercise their rights. James Bopp Jr. (above), attorney for PMW, insisted “no person should suffer harassment” by signing a petition. The justices weren’t buying it.
The pullquote to walk away with comes from Antonin Scalia, who told Bopp, “Running a democracy takes a certain amount of civic courage. … The people of Washington evidently think that this is not too much of an imposition upon people’s courage, to stand up and sign something and be willing to stand behind it.” Scalia and Ruth Bader Ginsburg were adamant about getting Bopp and Washington’s Attorney General Rob McKenna, representing Sec. of State Sam Reed (pictured, L-R) to argue whether signing a petition was a legislative act, or political speech. And Sonia Sotomayor jumped in to quiz Bopp about how, if the court were to rule unconstitutional the state’s disclosure laws, it would mesh with prior rulings affirming such disclosure laws in politics, particularly among candidates. Bopp’s response? In those situations, disclosure is more important, and thus justified.
Chief Justice John Roberts appeared to support Bopp’s arguments, but Samuel Alito was the only one to do it so vocally. Without Scalia’s nod, however, it’s unlikely PMW would be able to secure a five-vote majority.
It’ll be many weeks before the justices issue their ruling, but it’s notable that this will be Justice John Paul Stevens’ last case he will hear in his multi-decade tenure; today was the last day of oral arguments of the court’s season, and he’s retiring this summer.
But if the tone and questioning was any indication, at least among the justices who spoke (which would be all but Clarence Thomas), the majority was quite aghast at PMW’s claims.