What great questions!
Ginsburg says that in his own brief, Bopp admitted that "you cannot tell anything about the signer's belief from the mere signature." It may signal support for the proposition or merely support for letting the people decide or a desire to get away from the signature collector. Bopp replies that "With all due respect, we do not say the third. We did say the first and the second." Ginsburg, looking as angry as I have seen her in a while, draws his attention to the page in his reply brief where all three arguments are laid out.
Justice John Paul Stevens, the model of civility, breaks in to ask the money question: "Wouldn't it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?" He adds, "Is there public interest in encouraging debate on the underlying issue?" Bopp replies: "It's possible, but we think this information is marginal."
This leads Scalia to bring down the house with: "What about just wanting to know their names so you can criticize them?" Scalia notes that the disclosure of your name is "so you can be out there and be responsible for the positions you have taken."
Bopp: "Well, then why don't they require both sides?"
Scalia: "What do you mean, 'both sides'? The other side hasn't signed anything."
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!"
For good or ill, the Supreme Court is necessary, and often, asks the appropiate questions.
This is great reading.
Justice John Paul Stevens, the model of civility, breaks in to ask the money question: "Wouldn't it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?" He adds, "Is there public interest in encouraging debate on the underlying issue?" Bopp replies: "It's possible, but we think this information is marginal."
This leads Scalia to bring down the house with: "What about just wanting to know their names so you can criticize them?" Scalia notes that the disclosure of your name is "so you can be out there and be responsible for the positions you have taken."
Bopp: "Well, then why don't they require both sides?"
Scalia: "What do you mean, 'both sides'? The other side hasn't signed anything."
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!"
For good or ill, the Supreme Court is necessary, and often, asks the appropiate questions.
This is great reading.