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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Friday, June 25, 2010 ::
    I haven't posted until now on Doe v. Reed -- the referendum-signature public-disclosure 1st Am case, decided yesterday -- because I've been contemplating the radical divergence between the extreme of the Scalia position (concurring separately) and the Thomas position (a lone dissent).

    First of all, we all know why we're here. Fifteen years ago the Court decided a case, McIntyre v. Ohio Election Commission, that is distinguishable yet sufficiently similar to Doe so that the issue of associational privacy in political debate would not have needed to be revisited had not one political interest, amid all the others in our society who also feel passionately about their causes, felt entitled to use bully tactics to punish those who agitated in the opposite interest.

    Yet only Scalia alluded to this -- and he is the only Justice who would have given that political interest what it wanted in this case, arguing that participation in a ballot initiative is not speech at all but legislation, and thus inherently suited to be done in public. One wonders if there is much carrying of him on shoulders, or at least some courteous tips of the hat, in the gay blogosphere today. I've done a quick search and haven't found any.

    McIntyre decided, over a Scalia dissent (joined by Rehnquist), that there is a 1st Am right to engage in anonymous leafletting. Thomas concurred, arguing from a different set of time-consecrated practices, namely, the lively anonmyous pamphlet wars that sustained the American Revolution and constutitional debates. In McIntyre, and again in Doe, Scalia's argument against 1st Am protection for the activity in question was based substantially on "longstanding practice" -- in these cases, bans on the activity in question (anonymous leafletting, anonymous voting) that were in place on and off since the late 19th century and were never 'til now thought to violate the 1st Am. In the absence of clear constitutional text to the contrary, such practices are constitutionally probative to Scalia (and were so to Rehnquist, and usually are to Thomas: see the Scalia dissent in Lee v. Weisman).

    Doe v. Reed reached the opposite result from McIntyre in regard to mandatory disclosure of names and addresses of referendum petition signers -- sort of. That is, the Court held that legislative petition-signing is speech, agreeing pro tanto with Thomas, but that no general rule against forced public disclosure of signers' names and addresses should be announced; rather, referendum advocates should petition courts for such protection on a case by case basis.

    Such was the opinion of the Court, by Chief Justice Roberts -- and it is plainly wrong. It occupies an untenable middle between two convincing (though irreconcilable) opposites. I shall now explain.

    Justice Thomas's lone dissent argued that, given that 1st Amendment interests in freedom of political association that the Court has long protected, and that the majority acknowledges are at stake in this case, the 1st Amendment must be construed as implying a blanket ban on forced disclosure to the public of the names and addresses of those who sign petitions for initiatives and referenda. Otherwise, this form of political participation and expression -- it is both, Thomas believes (and so does the rest of the Court, but not Scalia) -- will be chilled.

    Justice Scalia argues that the Court has sadly saddled lower courts with yet another balancing test (he and Thomas agree in deploring this), and that the bright-line, no-balancing-needed rule should be one that sees citizen participation in referenda as legislation rather than expression. E.g., at the federal level, votes in Congress must be on the record, and no one has ever imagined that this violates congressmens' 1st Am rights. So when citizens take legislative power back into their own hands, states are free (though they don't have to, of course) to treat them as the full equivalent of legislators.

    And what about the dangers of intimidation and reprisals by angry activists on the other side? Scalia says, basically, suck it up:
    [I]t may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
    Both the Scalia view and the Thomas view are cogent and summoning. One or the other of them must be right: the 1st Am either protects ballot initiative participation or it doesn't.

    But the opinion of the Court is plainly and disastrously wrong -- and no one makes clearer why this is so than Justice Alito in his concurrence (though he nonetheless joins the Roberts opinion, perhaps realizing that leaving it as a plurality opinion would only make a bad situation worse).

    The Court, notes Alito, has announced a 1st Amendment right for citizen participation in ballot initiatives, but has failed to announce a judicial scheme for protecting that right. It accords such respect to the state's asserted interests (more on these in a later post, I hope) that district and circuit judges now have no guidance, and potential petition signers have no assurance that their names and addresses will be kept private. Alito's solution would be to give lower courts a test to use that puts the thumb squarely on the scale for the citizen's 1st Am interest.

    In other words, Alito's position differs only minutely from Thomas's. Thomas would announce a strict 1st Am rule up front; Alito would announce a balancing test up front but than adjust the balance so that it favors the 1st Am interest. Thomas's approach is both more coherent and more protective of 1st Am interests, but perhaps Alito thought that, by writing from "within" the majority opinion, he could influence how it is applied.

    Note too that while the majority says it is applying "exacting scrutiny" to the state's asserted interests, Alito offers such a long list of less-restrictive means that one is forced to conclude that he is applying good old strict scrutiny.

    Now, Scalia and Thomas, in this case -- they offer us bright-line rules. Just -- opposite ones!

    EDITED TO ADD: In an earlier draft of the above, I mistakenly had Alito providing the "fifth vote" the make the Chief's opinion the opinion of the Court. That was because I mistakenly thought Justice Sotomayor's concurrence (one of several "Yeah, me too" concurrences in this case, possibly intended to reinforce the standardless balancing test that the majority supplies, rather than the 1st-Am-interest-tilted one that Alito favors) was separate. In fact she also joins the Roberts opinion, giving that one six votes in all -- and making it harder still to understand why Alito's reasoning does not propel him to join the Thomas dissent.

    :: David M. Wagner 9:37 PM [+] ::

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