The Conservatives and Liberals Swap Places on Privacy

Privacy For Me, But Not For Thee.

Today, the Supreme Court decided Americans for Prosperity Foundation v. Bonta. The Justices split along 6-3 ideological lines. Chief Justice Roberts wrote the majority opinion, and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justice Sotomayor wrote the dissent, and was joined by Justices Breyer and Kagan.

If I read the majority correctly, most disclosure laws will be reviewed with "exacting scrutiny," regardless of how severe the burden. There is a vigorous debate between the majority and dissent about Shelton v . Tucker (1960). Justice Sotomayor probably has the better reading of Shelton. Once again, I think the Chief quietly rewrote precedent without acknowledging his moves. Then again, with six votes, Justice Stewart's five-decade-old 5-4 decision didn't stand a chance. The outcome here should not be surprising.

I found noteworthy a few aspects of the case.

First, I think our society has changed in the past decade since Doe v. Reed (2010). And the Court's shift reflected that change. Justice Sotomayor observes:

That disclosure requirements directly burden associational rights has been the view of JUSTICE THOMAS, (dissenting opinion), but it has never been the view of this Court. Just 11 years ago, eight Members of the Court, including two Members of the current majority [Roberts and Alito], recognized that disclosure requirements do not directly interfere with First Amendment rights. In an opinion barely mentioned in today's decision, the Court in Reed did the opposite of what the Court does today.

During the Prop 8 initiative, there were well-documented cases of retribution for opponents of SSM. And the situation has gotten much worse in the past decade. The conservatives on the Court have seen first-hand what happens to conservatives who support conservative causes–especially in the wake of Obergefell. Dare I say cancel culture?

Second, Justice Sotomayor seems miffed that precedents established to help civil rights groups (NAACP v. Alabama) are now being used to protect conservative mega-donors:

The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support.

She does not see the Koch brothers as deserving of the same protections as members of the Alabama chapter of the NAACP. Privacy for me, but not for thee.

She revisits this theme later:

Privacy "may" be indispensable to the preservation of freedom of association, but it need not be. It depends on whether publicity will lead to reprisal. For example, privacy can be particularly important to "dissident" groups because the risk of retaliation against their supporters may be greater. For groups that promote mainstream goals and ideas, on the other hand, privacy may not be all that important. Not only might their supporters feel agnostic about disclosing their association, they might actively seek to do so.

This contrast between "dissident" groups and "mainstream" groups is stark. I don't know how to distinguish these two categories. Indeed, what may seem "dissident" to one person would be "mainstream" to another. Today, conservative groups in California are closer to dissidents. Right-wingers are the discrete and insular minorities in Sacramento. Social conservatives may even warrant protection under the California Endangered Species Act. Perhaps the state will establish protective habitats. By contrast, social justice groups, including the NAACP, would be "mainstream."

Third, I found unpersuasive Justice Sotomayor's argument that donors might be "agnostic" about disclosing their donations. Perhaps liberal donors who make charitable contributions to "mainstream" socially-acceptable institutions are happy to signal their virtues. But conservative donors do not have those luxuries. Even if the majority of donors are "agnostic," a minority of donors fear retribution. Call them the "dissidents."

Finally, one unrelated note. Not a single conservative Justice blanched at enforcing the so-called freedom of association. This right is premised on substantive due process. Yet, the Court casually refers to it as a First Amendment right. Not so. Justice Thomas made some overtures to the Assembly Clause. But we are dealing with a substantive due process right based on penumbras of the First Amendment. How far we've come.