Surprise, surprise. Guess who raised the loudest objections to keeping secret the names of those who signed petitions in Washington's Referendum 71, which hoped to overturn the state's "everything but marriage" domestic partnerships?
"Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections Wednesday to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots. When he was finished, the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right, even though the plea got the fervent support of Justice Samuel A. Alito, Jr., and some implied help from Chief Justice John G. Roberts, Jr. The oral argument was in John Doe # 1, et al., v. Reed, et al. (09-559).
Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the “touchy, feely” sensitivity of some political activists, the Justice said 'you can’t run a democracy' with political activity behind a First Amendment shroud. 'You are asking us to enter into a whole new field,' Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition. Politics, the Justice went on, 'takes a certain amount of civic courage. The First Amendment does not protect you from civic discourse — or even from nasty phone calls.'"
The New York Times adds the majority of the Court appeared "skeptical"—especially after this:
"In testy exchanges with Justice Ruth Bader Ginsburg, Bopp conceded that petition signers give up some expectations of privacy, that their signatures may not indicate a political point of view and that disclosures of such names are a commonplace occurrence in some 20 states. 'The sponsoring organizations sometimes sell or trade these lists' of names, Justice Ginsburg said. 'They use them for fund-raising purposes. So that would be the end of a person’s privacy, at least on one side. Is that true, that the initiative sponsor uses these lists?' 'Yes,' Mr. Bopp said."
Justice Ginsburg added, drawing on Mr. Bopp’s briefs, that signing a petition could mean one of three things: support for the ballot measure, support for the idea that the issue in question should be put to a vote or an effort to placate a pesky solicitor. Mr. Bopp denied endorsing the third view, prompting Justice Ginsburg to read a snippet from one of his briefs saying that people may 'simply sign to avoid any further discussion with a petition circulator.' That caused Mr. Bopp to reverse course."
Of particular note to SCOTUS watchers: Washington's Republican Attorney General Robert McKenna defended his state's open records law. And this was the last scheduled case in the term and "probably the last of Justice John Paul Stevens’s tenure."