Doe v. Reed: A Pleasant Surprise

I usually expect the worst in things. This way, I’m rarely disappointed and often pleasantly surprised.

So it went when I read the oral argument transcript in Doe v. Reed. Scalia’s approach is highly enlightened, and I’m slightly ashamed to admit that I didn’t know that until the late 19th Century voting was not anonymous in this country.

“What about just wanting to know their names so you can criticize them? Is that such a bad thing in a democracy?”

So perhaps things will go better for the pro-disclosure side.

Like many of my colleagues, I’m not sure what to make of Justice Scalia. He’s generally very conservative, and I’m not, although I’m not really a liberal either (unlike my colleague). One of my professors pronounces his name “Scaylia,” as in “scale” (as of a serpent) + “-ia.” Also, I’m not an originalist. For the most part, though, I think his jurisprudence is motivated by his legal philosophy: while his political leanings show through in his jurisprudence from time to time (yes, I’m still harping on about Bush v. Gore), some of his opinions in evidence and Confrontation Clause cases have come out very strongly in favor of defendants’ rights. His jurisprudence is consistent for the most part, and I guess you have to respect him for that.

I’m going back on my original prediction. Now I think it will go 6-3 to affirm and allow disclosure, with Scalia writing the majority opinion and Roberts writing the dissent (which Alito, and perhaps Thomas, will sign). We may see a split decision on the as-applied challenge that in this particular case the petition signers will be faced with harassment and that this will chill their speech in a constitutionally impermissible way, as opposed to a blanket assertion that disclosure of petition signers’ names and addresses is unconstitutional per se. On remand, the district court will have to make specific factual findings as to the degree and likelihood of harassment (hey, degree and likelihood! Carroll Towing!), with the Court articulating the standard for the district court to apply.

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