Show Notes
Greetings, and welcome to the Highest Court Report podcast. As always, I’m your host Conor, and thank you for joining me. As we are aware, at least I assume we are, the term Cancel Culture has been permeating the airwaves for quite some time now. The former President utilized it often, and many of his acolytes in his party still do. I didn’t think, however, that the Highest Court in the land would fall prey to the fear of the holding to account those who violate laws or at least societal norms or ethics. But, as we are wont to discover, this is undoubtedly the case. Anyways, let’s get to it. This is Episode 10, The Political Rights’ Kryptonite.
I saw an article the other day, and found, I think, pretty much the desired quote from a former Supreme Court justice, that really flies in the face of the frequent and apparent terror that many on the political right have encountered of late. The case was Doe v Reed, and the man quoted, may not be who you think he was considering the content of his speech.
Here’s a quote from his opinion:
“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”
Can you guess who it is? Yeah, that’s OK, I couldn’t either. Those were the words of the late Justice Antonin Scalia,
in a 2010 opinion concerning whether the public should be allowed to learn who signed a petition seeking to call a referendum on a state law.
They form a stark distinction with the attitude of conservative justices recently, only a bit more than a decade after Doe, when the Court heard another case asking whether disclosure laws could be applied to political actors writ large.
The conservative justices who heard this new case,
Americans for Prosperity Foundation v. Bonta, showed little of the confidence and “civic courage” that Scalia had celebrated. Many of were brimming with paranoia that angry mobs are waiting to cancel conservative speakers.
At two separate points in the oral arguments, Justice Neil Gorsuch warned of a world where the government could demand to see your Christmas card list or a list of all the people you’ve dated in the past. Justice Clarence Thomas repeatedly suggested that the Court must provide constitutional protection to any advocacy organization that is accused of being “racist” or “homophobic.” Justice Samuel Alito warned of “vandalism, death threats, physical violence, economic reprisals, harassment in the workplace” directed at donors to an anti-LGBTQ campaign.
Americans for Prosperity is a difficult case to navigate, and it evokes delicate issues, vis-à-vis when donors to advocacy organizations should be allowed to keep their identities secret in order to protect them from reprisals. As the Court first recognized in the Jim Crow era, when Alabama
tried to uncover the NAACP’s membership list, in order to assist in halting Civil Rights legislation and rights for Black people, there are rare cases where donors or other individuals associated with advocacy groups must be protected from state disclosure rules.
But the Court’s conservative majority appears to believe that reprisals against political conservatives are now so common that it may require handing down a sweeping and potentially unprecedented cure to protect their fellow conservatives from the horrors of cancel culture.
You may ask yourself, now what is this case really about? What are the substantive issues at hand, the justiciability of it all? Well, you are not alone, and I had a proverbial Homeric journey through the case, and just like Odysseus, I didn’t really come out feeling too great about it through my travails.
The specific regulation at issue in Americans for Prosperity is rather juvenile or at least kind of performative. California state law requires all nonprofit organizations that raise tax-deductible funds within the state to disclose their largest donors to the state attorney general’s office. That office, which claims that it needs this information to investigate fraud in the nonprofit sector, is required to keep all this information confidential from the public. But the attorney general’s office hasn’t always followed ideal security procedures, and some of this confidential information has leaked to the public before.
The plaintiffs in this case are two conservative advocacy organizations, the Americans for Prosperity Foundation and the Thomas More Law Center, who claim that this donor disclosure requirement is unconstitutional.
The Court’s precedents are clear about how this case should proceed. Most people, or rather most listeners of this podcast at least, know of the Court’s decision in
Citizens United v. FEC (2010) because of its holding that corporations could spend unlimited money to influence elections. But
Citizens United also took a rather permissive attitude to laws requiring the disclosure of political donors.
Courts differentiate between what are known as “facial” challenges to a law, and milder “as-applied” challenges. If a law is declared unconstitutional on its face, that means it must cease to operate entirely and at once, or rather at once in legal timeframes. But if a particular plaintiff prevails in an as-applied challenge, the government may still be able to enforce the challenged law against other parties.
Citizens United applied the Court’s preexisting position that, when someone challenges a disclosure law, an as-applied challenge is the preferred medium. As the Court explained, an organization that “could show a reasonable probability that disclosure of its contributors’ names will
subject them to threats, harassment, or reprisals from either Government officials or private parties” may bring an as-applied case against a disclosure law.
Based on this framework, the Americans for Prosperity plaintiffs have a strong case. At one point during the oral argument, Justice Sonia Sotomayor — arguably the Court’s most liberal member — told California’s lawyer that “a reasonable person may not have much faith in the AG’s office after previous breaches” of its confidential information. And liberal Justice Elena Kagan also pointed to the trial court’s findings that there is a ”pervasive reoccurring” problem of public disclosure in the state AG’s office, and that donors to the plaintiffs ”would likely be subject to threats and harassment” if their names were disclosed.
So this could have been an easy case. Apply the same approach the Court applied in Citizens United, accept Sotomayor and Kagan’s understanding of the case’s facts, and grant relief to the two plaintiffs on an as-applied basis. The opinion could potentially even be unanimous, right?
So, you may be asking, how did the conservatives view this case?
But the plaintiffs insist that they are entitled to facial relief. In other words, the state’s disclosure rule must be tossed for all nonprofits, regardless of whether donors to those nonprofits face harassment, or even if they want to keep their donations secret.
Some of the Court’s Republican appointees appeared to deliberate it would be extraordinarily burdensome to require challenges to California’s disclosure law to be handled on an “as-applied” basis. (Lots of legal jargon here, I know, hang in there.)
“How do you think an as-applied challenge would work?” Chief Justice John Roberts asked acting Solicitor General Elizabeth Prelogar, who was in Court to defend using the “as-applied” rules in this case. Should a charity “attach an affidavit or something saying we’re a very controversial charity and we think, if people knew who gave money to us ... their rights to association would be chilled?”
Justice Alito warned of a world where every single nonprofit that fears for its donors would have to “take California to court and fight the state tooth and nail for more than six years in order to avoid potential public disclosure of its list of donors.”
Realistically, these fears are exaggerated. Federal law permits courts to require a state that violates an organization’s constitutional rights to
pay that organization’s legal fees. So, if California is too reluctant to grant exemptions to organizations that seek them, it will be hauled repeatedly into a judiciary dominated by conservatives and will rapidly learn that it has made a very expensive mistake.
Thomas, for his part, already wrote an opinion in Citizens United — he was joined by no other justice — indicating that he would strike down disclosure laws on their face even in the campaign finance context. And Justice Neil Gorsuch appeared to join Thomas’s camp in the aforementioned case.
“If the First Amendment protects the right to associate in private, why do we need to consider harassment?” Gorsuch asked, suggesting that all donors who seek to influence politics through their wealth are entitled to remain private.
And then there was Alito, who joined the majority opinion in Citizens United and rejected the more radical approach laid out by Thomas in that case, interesting as that may seem. He suggested that “in our current atmosphere,” political donors “to organizations that take unpopular positions on hot-button issues have reason to fear reprisals.”
The phrase “in our current atmosphere” is telling, because it raises the question of why he thinks the atmosphere was different in previous eras.
The seminal case establishing why advocacy groups should sometimes be allowed to receive exemptions from political disclosure laws is
NAACP v. Alabama ex rel. Patterson (1958). It involved an effort by the Jim Crow state of Alabama to force the NAACP to disclose its members to the state — most likely so those names could either be turned over to the Ku Klux Klan (who had deep ties to the political system in Alabama and many Southern states at the time, and frankly today as well) or placed on an employment blacklist.
Though the Court ruled in favor of the NAACP in this case, it only granted as-applied relief to the organization. It did not strike down the underlying state statute, which required most corporations doing business in Alabama to make certain disclosures.
Does Alito think that the atmosphere in the Jim Crow South was more unfriendly to “organizations that take unpopular positions” than the atmosphere we live in today? Hmm. If as-applied relief was sufficient to protect civil rights activists, why does the Americans for Prosperity Foundation require more? Are they at greater risk than those in Jim Crow south?
The most likely explanation for the conservative movement’s shifting position from the views Scalia expressed in Doe to the views expressed by most of the Court in oral arguments is a problem of regressive empathy.
People who express unpopular views, or those who enable organizations that do so, have faced harassment or worse for as long as there has been democratic politics.
Just ask Socrates, right? To be clear, donors to the Americans for Prosperity Foundation should no more face harassment than donors to the NAACP. As Sotomayor and Kagan noted, the foundation has a strong argument on the facts.
But it is true that the values espoused by people like Roberts, Thomas, Alito, and Gorsuch are increasingly out of favor with the American public, after all, the Republican Party has lost the popular vote in
seven of the last eight presidential elections, and the thing that distinguishes “our current atmosphere” from, say, the atmosphere when Alito joined the
Citizens United opinion in 2010 is that Alito and people like him now correctly perceive that their views are on the outs.
They are suddenly hyperaware of every incident where a business is boycotted because its owner opposes LGBTQ rights, or where a corporate executive is fired for expressing similar views. Don’t forget, Alito and all those are members of the Federalist society. Heck, Clarence Thomas officiated Rush Limbaugh’s 20th wedding, or third wedding, whatever.
But they’ve yet to explain why these incidents require a more protective rule than the one announced in NAACP. Or why the harassment faced by conservatives today is somehow worse than the threat that civil rights activists would have faced if their identities had been revealed to the Klan… I daresay it is not quite as bad. But what do I know? I just talk into a microphone. Do some research into cancel culture and try to ignore both the left and the right’s bias here and look at the facts as best you can. Did Matt Gaetz pay to have relations with a 17-year-old minor? Did Trump do… all those things that he allegedly did? Did Jim Jordan as a wrestling coach…? Anyways, I digress. Look at the facts for yourself and come to your own conclusions.
I consider it closer to Consequence Culture, but that is just this lowly podcaster’s opinion. Anyways, thank you for joining me yet again. I am sure there will be yet another nebulous case or controversy I can dive into next week. Cases in Oregon are again on the rise. Stay safe out there. This is the HCR, signing off.