Opinion: Not so fast in Doe v. Reed

April 29, 2010

As posted by Tom Goldstein on Scotusblog.com:

"I happened to be in the courtroom today for the argument in Doe v. Reed, which was Justice Stevens’ last argued case.  Early reporting and commentary on the decision – with which I agree entirely – has been that the Court will affirm by a wide margin the Ninth Circuit’s refusal to grant the particular injunction now before the Court.

"But it does not follow, as some have thought, that the courts will in fact allow the lists of petition signatories to be released.  In fact, I think there is a significant chance they will not.

"The lopsided tone of the argument in favor of the State of Washington today depended very much on two factors:  Justice Scalia’s strong views that disclosure does not implicate any constitutional interest, and the case’s procedural posture.  The latter point is critical.  As the Justices understood the case, it came to them presenting only a categorical, “facial” question: whether the signatories to an initiative can ever be disclosed consistent with the First Amendment.  That issue – presented by Count I of the plaintiffs’ complaint – was decided below.

"The case thus did not present the significantly narrower question whether the signatories to this referendum may be disclosed.  That issue – presented by Count II of the plaintiffs’ complaint – was not resolved by the lower courts.

..."I think there is a significant chance that a majority of the Court will signal that the district court should on remand consider very seriously the request for an injunction as to this referendum.  And so there is a realistic chance that the State of Washington’s victory in this case will be short-lived.

"In the end, however, I doubt that the opinion which results from today’s argument will be the last word on the disclosure of referendum signatories, and there is a significant chance that the case will be back in the Supreme Court in a year or two."

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