Joe Mirabella

Doe Versus Reed: Scalia Defends Open Government

Filed By Joe Mirabella | April 29, 2010 2:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Doe vs Reed, Referendum 71, Scalia, Supreme Court, Washington

Scalia appeared to be on the side of the State of Washington yesterday during the Supreme Court's hearing for Doe Versus Reed.

Doe Versus Reed, is a case stemming form Referendum 71. Forces who wanted to prevent the Domestic Partnership law from going into effect, circulated a petition, gathered enough signatures to qualify referendum 71 for the ballot, then petitioned the court to keep those signatures private. Referendum 71 was soundly approved by voters, ushering in the historic expansion of rights for gay and lesbian citizens.

According to a court transcript from today's proceeding, Scalia was underwhelmed by Protect Marriage Washington's (PMW) desire to keep petition signatures private.

Scalia made his opinion known early:

JUSTICE SCALIA: And in light of the fact that 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.

Later during an exchange with James Bopp, Jr., Counsel for PMW, Scalia referred to an initiative passed by Washington voters to have public disclosure laws:

JUSTICE SCALIA: Can you go -- the people of Washington -- the people Washington evidently think that this is not too much of an imposition upon people's courage, to -- to stand up and sign something and be willing to stand behind it.

MR. BOPP: In a sense -

JUSTICE SCALIA: Now, if you don't like that, I can see doing it another way. But -- but the people of Washington have chosen to do it this -- this way.

Scalia later defended debate in a democracy:

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?

Scalia was clearly unimpressed by the lack of "courage" PWM's case represented. He was concerned about the potential ramifications of a closed democracy:

JUSTICE SCALIA: Oh, this is such a touchy-feely, oh, so sensitive about -- about any -


JUSTICE SCALIA: You know, you can't run a democracy this way, with everybody being afraid of having his political positions known.

Secretary of State Sam Reed (R) was represented by Washington State Attorney General Rob McKenna (R). During McKenna's oral arguments, Scalia questioned whether the people would ever have a reason to not trust the state to verify signatures without public scrutiny:

JUSTICE SCALIA: It -- it may be an issue in which his administration has taken a particularly firm stand and the public may not trust the job that the Secretary of State does.

GENERAL McKENNA: That goes to the heart to the Public Records Act, Justice Scalia, trust but verify. The people did not leave to the State the idea that, well, we will let you know what you need to know.

JUSTICE SCALIA: Trust but verify, I like that.

Trust but verify, I like that too. The court is expected to rule sometime in June.

Read the entire transcript here:

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At least someone is taking this seriously.

James Bopp Jr. is an Indiana lawyer, btw. He's well known here for taking all the far-right religious cases.

Bopp's mission in life is to destroy all public disclosure and campaign finance laws. He was feeling pretty good after his Citizen's United win. I'm glad SCOTUS deflated him a bit.

I've kinda held off commenting, but with it being here and you bringing it up, I have this to say:

This is the first time I've ever seen Scalia do something I like. It's also a terrific insight into his personal approach to things.

I also find it rather interesting that the Justices were, basically, laughing at the arguments of the other side.

I'm *quite* pleased with this -- cowardice in civic involvement is not involvement. it's persecution.