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Anonymity, Petitions, and the Supreme Court

I heard a story about this on NPR this morning, and the linked story is from the SCOTUS blog. The case revolves around the actions in Washington State for last year’s (it seems like a decade ago) efforts by opponents for gay rights to keep secret the names of those who had signed a petition to get their initiative on the ballot. I’m as guilty as anyone- it is easy to think that the more conservative justices will always vote with those who oppose social justice issues, and the more liberal will vote against, but that may not really be the case. Granted, there has been no decision yet. The jury is still out so to speak, and this only refers to what happened during oral arguments.

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 Role in Individuals in Government

There are a few things about this case which are of real interest to me. First, is the issue of transparency and the legislative process. The State of Washington argued that the signing of a petition is an act of participating in the legislative process which must remain as transparent as possible. They (and I agree) draw a distinction between participation in the legislative process and the solitary act of voting. Initiatives have a direct bearing on legislative action- the way laws are passed. Once passed, the voters have an ability to influence that legislation if they feel the legislators haven’t acted in the interest of the people.  This is highly different from casting a vote for one individual or another .

The opponents to the Washington State law who have taken this case all the way to the Supreme Court are arguing that a person’s involvement in the legislative process should be secret just like a vote in an election. They are also using the victim defense, claiming that the opponents of gay rights were treated badly.

Scalia’s comments seem to agree with the State of Washington. Scalia suggests to do otherwise, the court would be creating “new rights,” something that gets associated with activist judges. Here, the activist judges appear to be the far right conservatives, Alito and Roberts.

The Next Supreme Court Justice

The way these 3 conservative justices are treating this case, or at least how it appears at this time, highlight the importance of who Obama nominates to be the next SCOTUS judge. He can (possibly) avoid being held back with the attack of “activist judge” and everybody wins, if he selects a candidate who will always place the rule of law above al else. Unlike Alito and Roberts who were clearly chosen to add a more conservative weight to the court. it isn’t a matter of picking a liberal, a moderate or a conservative, but rather, do they interpret law or try and create it on their own?

I know, this is no clear cut issue. No matter what a judge may do, anyone who is opposed to the decision can label her/him an activist judge. I just love the way Scalia labels the case as a desire to create new rights. but this shouldn’t be taken as any suggestion that Scalia is a friend of the GLBTQ community, nor does it mean we know how he will finally decide on this case. but the differences of opinion demonstrate how crucial it is for the next SCOTUS judge to be able to rise above pure politics or our future is doomed.

SCOTUSblog » Without Scalia, whither anonymity?.

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