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In a little less than 18 hours, the Supreme Court will decide McDonald v. Chicago. Since cert was granted on this case, I have co-authored a 90 page law review article, gave several talks at law schools, and have written over 100 blog posts about this case (about 10% of my total blog posts!). Needless to say, I am very interested in this case.

Here are my final predictions about the possible scenarios, and likely aftermath.

I predict that there are 5 votes to incorporate the Second Amendment. Beyond that, there are a couple possible scenarios, depending on how the Court wishes to address (a) the contours of gun control regulations and (b) the privileges or immunities clause.

D.C. v. Heller left open many issues of what types of gun control  are constitutional. Most lower courts have seized on the “sensitive places” and “longstanding prohibitions” dicta in Heller, and found that most types of gun control are constitutional. The Supreme Court may want to clarify that jurisprudence. Or, they may want to leave the Heller test as it is, lest they lose Justice Kennedy’s crucial vote. Many postulate that Kennedy was responsible for inserting that dicta into Heller.

Second, the Court asked the parties to address whether the second amendment should be incorporated through the due process clause, as well as through the privileges or immunities clause. During oral arguments, Scalia and Roberts were overtly hostile towards the privileges or immunities clause. Alito asked a question about privileges or immunities and economic liberty, but I couldn’t really read which way he was going. Kennedy didn’t ask anything about privileges or immunities, and as usual, Justice Thomas was silent. The only likely vote for privileges or immunities is Justice Thomas. He has written previously that he is open to revisiting the clause, and this is the perfect case. Additionally, Justice Kennedy who is a fan of expansive forms of liberty, may be willing to breath some life into this long dormant clause.

The authorship of the opinions, in my mind, will depend on these two issues.

Here are a few possible scenarios.

Chief Justice Roberts writes the opinion.

The simplest option will be a very brief opinion–maybe 20 pages or less–that simply says the 2nd Amendment is incorporated through the due process clause. If this is case, I am almost certain Chief Justice Roberts writes this opinion. It will be short, and clean. Let’s hope Roberts considers originalism at the right time, and discusses the right to keep and bear arms at the time of the ratification of the 14th amendment, and not during the revolutionary era. Roberts will keep Kennedy and Scalia on board by not talking about liberty too much, yet ensuring that gun control regulations can stand. It will follow existing incorporation doctrine, and add nothing. Scalia, who has railed against substantive due process, will have no problem contradicting himself by incorporating the second amendment through the due process clause (see here and here). Relying on the test proffered in DC v. Heller, the Chicago gun ban is unconstitutional. The Court may add a few sentences narrowing the holding in Heller, but this is unlikely. It really isn’t necessary for the purposes of this case.

With respect to the privileges or immunities clause, I see two possible outcomes. First, Roberts will disparage p or i. He will compare it to a form of judicial lawlessness reminiscent of the Lochner era, and the Court should eschew it. If this is the case, expect a fierce concurrence from Thomas accomplishing several goals. First, Thomas will argue that historically, the more “originalist” method of incorporation is through the privileges or immunities clause, and not the due process clause. Second, Thomas will call the Chief out for using substantive due process to incorporate the second amendment, even though that is the precise doctrine Scalia and others have excoriated for decades. Third, Thomas may argue that P or I protects rights beyond those listed in the bill of rights–that is unenumerated rights. And, this may be a stretch, but Thomas may join in the judgment only, finding that he would not incorporate through due process. This would yield a 4-1-4 split. The Chicago gun ban would be unconstitutional, but the reasoning why–that is due process or privileges or immunities–would be unclear.

Alternatively, Roberts does not address Privileges or Immunities, or mentions it, but writes that this is not a proper case to discuss it. If this is the case, Thomas will likely argue that p or i is the more originalist form of incorporation, and argue that it protects some unenumerated rights. However, he won’t attack substantive due process, and will certainly join the majority opinion.

The wildcard is Justice Kennedy. He loves expansive forms of liberty and personal autonomy. While he does not believe in the right to bear arms in sensitive places, certainly he things it is permissible to protect oneself in non-sensitive places–that is in, the home. Kennedy may also realize that p or i could protect more forms of liberty currently unavailable under the due process clause. He may join Thomas’s concurring opinion, or perhaps write his own. If Roberts rips P or I, Kennedy will write a strong concurrence. For that reason, more than anything else, I do not expect Roberts to disparage p or i. Roberts is the only justice who will not indulge his own views in order to keep 5 votes.

Justice Alito writes the opinion

If the Court seeks to adds additional limitations on DC v. Heller, then I would agree with Goldstein at SCOTUSBlog, and Alito would be the Justice to write it. Justice Alito, who has a history as a prosecutor, may be more interested in strengthening gun control laws. In this case, Justice Alito will write this opinion. Though, I have difficulty accepting that Scalia would sign onto this opinion. Heller is his baby. I think he would be most comfortable with having the Chief write a short opinion affirming Heller, and incorporating the second amendment without waxing eloquent on substantive due process. If this is the case, expect Scalia to concur, arguing that the Heller test should be reaffirmed.

With respect to privileges or immunities, I do not think Alito would be as brazen as the Chief could be, and likely will not disparage p or i. Therefore my reasoning above stands. Expect Thomas and/or Kennedy to concur.

Stevens Dissent

Expect an epic dissent from Justice Stevens. This is his parting salvo, and one of the last major opinion he will deliver. He dissented in Heller, so expect many of the similar refrains– how the majority’s argument is historically inaccurate (don’t expect Stevens to use originalism at the right time), the states have long been able to control guns, and it is not implicit in the concept of ordered liberty to allow guns. Additionally, he will address the policy concerns, and say this will lead to more death and dying.

I am not sure if Stevens will write about substantive due process, or the privileges or immunities clause. At arguments, Stevens argued for a narrow vision of incorporation. This would only make sense if the Court incorporates the 2nd amendment, but does not strike down the Chicago gun ban. This ain’t gonna happen. So, Stevens will have to say the due process clause does not counsel incorporation. He may throw some dicta in about p or i, but I don’t think he’ll focus on it.

Breyer Dissent

Breyer, who also dissented in Heller, will issue a policy paper disguised as a judicial opinion, arguing why guns are bad and dangerous, and should be balanced against a states legitimate interests in gun control. Don’t expect much constitutional law in this opinion.

Aftermath

Once the opinion is issued, suits will be filed in cities across the country, challenging local gun control laws. If the Supreme Court decides that the Chicago gun ban falls because it is a 100% ban–like the Chicago gun ban–other suits will have difficulty. If the Court decides that a ban that is not 100%, but is still really onerous violates the second amendment–like the one in New York City–expect those suits to have more success.

Needless to say, in places like New York City, Chicago, and Los Angeles, regardless of what the Constitution says, it will be extremely difficult to purchase a gun, and the right will be constructively violated at every step. In the 2 years since Heller, only 800 guns have been registered in D.C.. These Supreme Court opinions are largely symbolic. Yet, often the fight for liberty must start with mere symbolic victories.

Here are some of my thoughts from Skilling v. United States,decided today by the Supreme Court.

From Justice Ginsburg’s holding:

We consider in this opinion two questions arisingfrom the prosecution of Jeffrey Skilling, a longtime Enron executive, for crimes committed before the corporation’scollapse. First, did pretrial publicity and communityprejudice prevent Skilling from obtaining a fair trial? Second, did the jury improperly convict Skilling of conspiracy to commit “honest-services” wire fraud, 18 U. S. C.§§371, 1343, 1346?

Answering no to both questions, the Fifth Circuit affirmed Skilling’s convictions. We conclude, in common with the Court of Appeals, that Skilling’s fair-trial argument fails; Skilling, we hold, did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. But we disagree with the Fifth Circuit’s honest-services ruling. In proscribingfraudulent deprivations of “the intangible right of honest services,” §1346, Congress intended at least to reachschemes to defraud involving bribes and kickbacks. Construing the honest-services statute to extend beyond that core meaning, we conclude, would encounter a vagueness shoal. We therefore hold that §1346 covers only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickback, it does not fall within §1346’s proscription.

Part I of the opinion, written by Justice Ginsburg, and joined by ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, and ALITO, JJ., focused on pretrial publicity,.

Part II of the opinion (beginning on page 11), written by Justice Ginsburg, and joined by ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., focused on juror prejudice.

Part III, of the opinion, written by Justice Ginsburg, and joined by ROB-ERTS, C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ found that the honest services fraud statute is constitutional.

Justice Scalia, joined by Justices Thomas and Kennedy did not agree with Part III, and concurred separately. Scalia would have found that the honest services fraud was void for vagueness, and unconstitutional.

Justice Sotomayor, joined by Justices Stevens and Breyer, wrote a dissenting opinion, disagreeing with Parts I and II, though the troika joined Part III, upholding the constitutionality of the honest services fraud.

So how to score this? I see 9 votes for reversing Skilling’s conviction and 6 votes for upholding the constitutionality of honest services fraud.

The meat of the opinion focuses on the constitutionality of the honest services fraud. Skilling was convicted on a conspiracy theory of honest-services wire fraud. While the Court found that the statute was not unconstitutionally vague, Skilling’s conduct–conspiracy–did not fall within the statute’s compass. Only bribery and kickbacks were within the statute.

More analysis after the jump.

(more…)

By now, you should all be familiar with perhaps the worst baseball call in a generation. Detroit Pitcher Armando Galarraga was throwing a perfect game through 26 batters. 26 up, 26 down. Batter number 27 hit a ball to second base, Gallaraga covered first. It looked like the throw to first was in time, but the umpire, Jim Joyce–now the most unpopular man in Detroit–called the runner safe.

Watch the video, judge for yourself. But it really looked like the throw beat the runner.

Now, this was not a borderline call. But assuming it was a borderline call, and it really could have gone either way, should the Ump make the call in favor of the perfect game? I mean, if the Judge was totally 50/50, and not certain, should the prospects of calling a perfect game weigh on his mind?

If Judges are like umpires, should umpires be like Judges? If so, would a Judge evaluating the equities in this situation have called the runner out.

Let’s put on our Justice Breyer hats and consider all of the relevant interests.

First, think of the poor city of Detroit. What a horrible place (see all of my Detroit posts here)! Their former mayor is in prison. The entire economy of the city is collapsing. Their professional sports franchises are miserable. I have joked that the city is slowly reverting to the state of nature. A perfect game would have been such a boon! New Orleans won a Super Bowl. Throw MoTown a Perfect Game.

To quote Michael Moore on twitter, “Congrats 2 Detroit Tiger pitcher Armando Galarraga 2nite on throwing a Perfect Ga… NOOOOOOOOO! WTF?! Now I’ve seen every type of crime here!”

(btw, I met Moore, and he was rather nice. For once, I agree with Big Mike).

Second, think of how special a 3rd perfect game in 3 weeks would have been. Totally unprecedented! What a boon to the sport. It would have generated excitement, increased popularity of the sport stil recovering from the Steroids debacle, and made America’s pasttime even more interesting.

Third, think of what would happen to umpires if you do not call the out. Joyce’s Wikipedia page has already been locked down due to vandalism. Before it was locked down, he was being attacked as one of the worst umpires ever. Taking a Barry Friedman-esque Will of the People approach to the umpires, certainly the umps need to take account of popular perception in making their calls. In the future, if a first base ump is in a similar situation, you can be certain the falling of Joyce will linger prominently in his mind.

Fourth, and perhaps most interestingly, even if the call was wrong, NO ONE WOULD CARE. The opposing manager would never come out to argue while the perfect pitcher is carried away triumphantly. No sanctions or penalties would ever be imposed. It is a total WIN-WIN.

But, I am not a fan of balancing tests. Umps should not consider the equities. Galaragga got robbed. But I am in favor of appellate review and correction of errors. This should be the nail in the coffin of purists who oppose replay cameras.

I will update this page as I read through the opinion.

From SCOTUSBlog:

The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.

The vote is 7-2, with Justice Breyer writing the opinion for the Court.  Justice Thomas dissents joined by Justice Scalia.  Justice Kennedy concurs in the judgment only, joined by Alito.

The opinion is here.

In short, the Court holds that the provision of SORNA is constitutional under the Necessary and Proper Clause. Justice Breyer advances 5 different considerations.

The Necessary and Proper Clause grants Congress authority suf-ficient to enact §4248. Taken together, five considerations compel this conclusion.

(1) The Clause grants Congress broad authority to pass laws in fur-therance of its constitutionally enumerated powers. (2) Congress has long been involved in the delivery of mentalhealth care to federal prisoners, and has long provided for their civil commitment. (3) There are sound reasons for §4248’s enactment. The Federal Government, as custodian of its prisoners, has the constitutionalpower to act in order to protect nearby (and other) communities from the danger such prisoners may pose. (4) Respondents’ contention that §4248 violates the Tenth Amend-ment because it invades the province of state sovereignty in an area typically left to state control is rejected. That Amendment does not “reserve to the States” those powers that are “delegated to the United States by the Constitution,” including the powers delegated by theNecessary and Proper Clause. (5) Section 4248 is narrow in scope. The Court rejects respondents’ argument that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step re-moved from a specifically enumerated power.

Thomas in dissent alleges that Breyer has substituted a 5 factor balancing test for the classic McCullough test.

Must each of the five considerations exist before the Court sustains future federal legislation as proper exercises of Congress’ Necessary and Proper Clause authority? What if the facts of a given case support a finding of only four considerations? Or three? And if three or four will suffice, which three or four are imperative? At a minimum, this shift from the two-step McCulloch framework to this five-consideration approach warrants an explanation as to why McCulloch is no longer good enough and which of the five considerations will bear the most weight in future cases,assuming some number less than five suffices. (Or, if not,why all five are required.) The Court provides no answers to these questions.

Justice Breyer relies on the long standing practice of Congress being “involved in the delivery of mental health care to federal prisoners, and has longprovided for their civil commitment.”

Thomas does not buy the argument that the duty to protect the health of prisoners justifies the permanent commitment of sex offenders.

For this reason, I cannot agree with JUSTICE ALITO that §4248 is a necessary and proper incident of Congress’ power “to protect the public from dangers created by thefederal criminal justice and prison systems.” Ante, at 3 (concurring in judgment). A federal criminal defendant’s “sexually dangerous” propensities are not “created by” the fact of his incarceration or his relationship with the fed-eral prison system. The fact that the Federal Government has the authority to imprison a person for the purpose ofpunishing him for a federal crime—sex-related or other-wise—does not provide the Government with the addi-tional power to exercise indefinite civil control over that person.13

From Justice Kennedy’s typical opinion concurring in judgment, he aims to limit the breadth of the Court’s opinion:

Concluding that a relation can be put into a verbal formulation that fits somewhere along a causal chain of federal powers is merely the beginning, not the end, of the constitutional inquiry. See United States v. Lopez, 514

U. S. 549, 566–567 (1995). The inferences must be con-trolled by some limitations lest, as Thomas Jefferson warned, congressional powers become completely un-bounded by linking one power to another ad infinitum in a veritable game of “‘this is the house that Jack built.’” Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800), 31 The Papers of Thomas Jefferson 547 (B.Oberg ed. 2004); see also United States v. Patton, 451 F. 3d 615, 628 (CA10 2006).

This separate writing serves two purposes. The first is to withhold assent from certain statements and proposi-tions of the Court’s opinion. The second is to caution that the Constitution does require the invalidation of congres-sional attempts to extend federal powers in some instances.

And what does Kennedy specifically disagree with? Curiously, Kennedy rejects Lee Optical as the test for Commerce Clause cases.

The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the Lee Optical test, asking if “it might be thoughtthat the particular legislative measure was a rational wayto correct” an evil, is the proper test in this context.Rather, under the Necessary and Proper Clause, applica-tion of a “rational basis” test should be at least as exactingas it has been in the Commerce Clause cases, if not more so. Indeed, the cases the Court cites in the portion of itsopinion referring to “rational basis” are predominantly Commerce Clause cases, and none are due process cases.

There is an important difference between the two ques-tions, but the Court does not make this distinction clear. Raich, Lopez, and Hodel were all Commerce Clause cases. Those precedents require a tangible link to commerce, not a mere conceivable rational relation, as in Lee Optical. “‘[S]imply because Congress may conclude that a particu-lar activity substantially affects interstate commerce doesnot necessarily make it so.’” Lopez, supra, at 557, n. 2 (quoting Hodel, supra, at 311 (Rehnquist, J., concurring in judgment)). The rational basis referred to in the Com-merce Clause context is a demonstrated link in fact, based on empirical demonstration. While undoubtedly deferen-tial, this may well be different from the rational-basis test as Lee Optical described it.

Justice Kennedy also has a refined view of the 10th Amendment, perhaps a relic of the federalism heyday of the Rehnquist Court.

The opinion of the Court should not be interpreted tohold that the only, or even the principal, constraints onthe exercise of congressional power are the Constitution’sexpress prohibitions. The Court’s discussion of the Tenth Amendment invites the inference that restrictions flowingfrom the federal system are of no import when definingthe limits of the National Government’s power, as it pro-ceeds by first asking whether the power is within theNational Government’s reach, and if so it discards federal-ism concerns entirely.

These remarks explain why the Court ignores importantlimitations stemming from federalism principles. Those principles are essential to an understanding of the func-tion and province of the States in our constitutional structure.

Justice Kennedy also remarks on the intersection of federal powers  state sovereignty.

It is of fundamental importance to consider whether essen-tial attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power isnot one properly within the reach of federal power.

Justice Alito’s concurring opinion explains his agreement, and disagreement with different elements of the majority and dissenting opinions.

The Necessary and Proper Clause does not give Con-gress carte blanche. Although the term “necessary” doesnot mean “absolutely necessary” or indispensable, the term requires an “appropriate” link between a powerconferred by the Constitution and the law enacted byCongress. See McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). And it is an obligation of this Court to enforce compliance with that limitation. Id., at 423.

The law in question here satisfies that requirement.This is not a case in which it is merely possible for a court to think of a rational basis on which Congress might have perceived an attenuated link between the powers underly-ing the federal criminal statutes and the challenged civilcommitment provision. Here, there is a substantial link to Congress’ constitutional powers.

From Justice Thomas’s dissent, joined by Justice Scalia:

The Court holds today that Congress has power underthe Necessary and Proper Clause to enact a law authoriz-ing the Federal Government to civilly commit “sexually dangerous person[s]” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. 18 U. S. C. §4248(a). I disagree. The Necessary and ProperClause empowers Congress to enact only those laws that“carr[y] into Execution” one or more of the federal powers enumerated in the Constitution. Art. I, §8, cl. 18. Because §4248 “Execut[es]” no enumerated power, I must respect-fully dissent.

The Court holds today that Congress has power underthe Necessary and Proper Clause to enact a law authoriz-ing the Federal Government to civilly commit “sexually dangerous person[s]” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. 18U. S. C. §4248(a). I disagree. The Necessary and ProperClause empowers Congress to enact only those laws that“carr[y] into Execution” one or more of the federal powers enumerated in the Constitution. Art. I, §8, cl. 18. Because §4248 “Execut[es]” no enumerated power, I must respect-fully dissent.

Justice Thomas goes through a great summary of the history of the Necessary and Proper Clause, from McCulloch to Raich.

Thomas holds that the Commerce clause cannot justify detention of sex offenders.

Indeed, not even the Commerce Clause—the enumerated power this Court has interpretedmost expansively, see, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937)—can justify federal civildetention of sex offenders. Under the Court’s precedents,Congress may not regulate noneconomic activity (such assexual violence) based solely on the effect such activitymay have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of OralArg. 21–22.5

This argument can have huge implications for future challenges to Health Care under the Commerce Clause.

And Thomas rejects the notion that simply because sexual abuse is a grave problem the Feds need to step in.

To be sure, protecting society from violent sexual of-fenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victimpersonally and society generally. See, e.g., Kennedy v. Louisiana, 554 U. S. ___, ___, n. 2, (2008) (ALITO, J., dis-senting) (slip op., at 9, n. 2, 22–23). But the Constitution does not vest in Congress the authority to protect societyfrom every bad act that might befall it.6 New York v. United States, 505 U. S. 144, 157 (1992) (“‘The question is not what power the Federal Government ought to havebut what powers in fact have been given by the people’” (quoting United States v. Butler, 297 U. S. 1, 63 (1936)).

Thomas concludes with an ode to federalism, and the withering Necessary and Proper Clause.

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.” Printz, supra, at 923. Regrettably, today’s opinion breathes new life into that Clause, and—the Court’s protestations to the contrarynotwithstanding, see ante, at 18—comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected,” Lopez, 514 U. S., at 584 (THOMAS, J., concur-ring) (citing Gregory, supra, at 457; Wirtz, 392 U. S., at 196; Jones & Laughlin Steel Corp., 301 U. S., at 37). In so doing, the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grantof authority as a “pretext . . . for the accomplishment of objects not intrusted to the government.” McCulloch, supra, at 423.

Transcript is available here. I will add my thoughts as I read through the transcript.

Scalia hit Bopp, who was arguing on behalf of Doe, right out of the gate. Scalia sought to equate disclosing names on a petition to disclosing names of contributors to a political campaign.

JUSTICE SCALIA: What — what about requiring disclosure of campaign contributions?

MR. BOPP: Well –

JUSTICE

SCALIA: Do you think that is unconstitutional?

MR. BOPP: This Court has upheld the disclosure in Buckley v. Valeo in 1976.

JUSTICE SCALIA: Right. Now, why doesn’t that fall within your principle that no person should be exposed to criticism for -3

JUSTICE SCALIA: What — what about requiring disclosure of campaign contributions?
MR. BOPP: Well -JUSTICESCALIA: Do you think that is unconstitutional?
MR. BOPP: This Court has upheld the disclosure in Buckley v. Valeo in 1976
.JUSTICE SCALIA: Right. Now, why doesn’t that fall within your principle that no person should be exposed to criticism for
MR. BOPP: Well, it could –
JUSTICE

SCALIA: — his political beliefs?

JUSTICE SCALIA: Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating or of adopting legislation?

MR. BOPP: Yes, Buckley II.

JUSTICE SCALIA: What is that?

MR. BOPP: Buckley II, you struck down the requirement that the person who is soliciting signatures self-identify.

JUSTICE SCALIA: That is — soliciting signatures is not taking part in the process of legislating.

MR. BOPP: Well –

JUSTICE SCALIA: The person who requests a referendum is taking — when there’s a certain number of signatures required to achieve it is taking part in that.

And in light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.

You are asking us to enter into a whole new field where we have never gone before.

JUSTICE SCALIA: What about just — just -what about just wanting to know their names so you can criticize them?

(Laughter.)

MR. BOPP: Well –

JUSTICE SCALIA: Is — is that such a bad thing in a democracy?

MR. BOPP: Well, what is bad is not the criticism, it’s the public — it’s the government requiring you to disclose your identity and belief.

JUSTICE SCALIA: But part of the reason is so you can be out there and be responsible for the positions you have taken.