Yesterday, I attended oral arguments in the Supreme Court case of McBurney v. Young, which I have previously written about. The case involves two different petitioners who were denied access to state records under a Virginia “freedom of information” law that limits such access to Virginia residents only. McBurney is a former Virginia resident who wanted some records related to an ongoing child support dispute. Hurlbert is a government information aggregator and reseller.
At issue is whether this preferential treatment is constitutional under the Constitution’s “Privileges and Immunities” clause, as well as the “Dormant Commerce Clause.” In my previous post, I discussed these doctrines in more detail, but I devoted most of my time to describing the privileges and immunities argument — essentially that citizens must receive equal treatment across all states when it comes to “fundamental rights.” While waiting for arguments to begin, I was chatting with another person in the audience. I asked him whether he thought that the argument was going to focus significantly on states’ rights, and he said he expected more time to be devoted to the question of whether or not the rights in question were “fundamental.” It turned out that, with the boisterous support of Justice Scalia, states’ rights were the order of the day.
Arguments began with Deepak Gupta arguing for the petitioners. He noted that Virginia is one of only two or three states with such an exception. Justice Scalia jumped in, noting that he remembered when these laws were passed. He asked how a law passed in the 1960’s or 1970’s could possibly constitute a “fundamental right” that would meet the standard of the privileges and immunities clause. Of course, as a general matter, Scalia thinks that “The Freedom of Information Act Has No Clothes”. Chief Justice Roberts pointed out that Hurlbert could just ask someone in Virginia to get the records for him, and Justice Ginsberg asked Gupta to describe Hurlbert’s business. Gupta explained that the business of collating and reselling government documents has been a “common calling” for a very long time. Thus, he explained, it is both a “fundamental right” as envisioned by the privileges and immunities clause, and something protected from state interference under the dormant commerce clause. Although this common calling–and common-law right of access to records–predates the Virginia FOIA, he argued that the Virginia law (perhaps paradoxically) removes this right for non-residents. Scalia again pointed out that the intent of these statutes was to foster visibility into government by the people that those laws governed–in this case, state residents. He asked why Virginia doesn’t have a right to prevent “outlanders” from “mucking around” in their business. The other justices grilled Gupta on the statute’s intent, the state’s interest in controlling its records, and what precedent would lead them to believe that the law is a restriction on interstate commerce or is discriminatory of some fundamental right.
Gupta finished his argument without mentioning McBurney at all. This was surprising to me, because I had assumed that the most compelling case would be the plight of this (former) resident who sought to obtain a fair outcome in a state-mediated dispute. These points are made in the petitioners’ briefs, and I focused almost entirely on them in my summary (Hurlbert and the dormant commerce clause argument was a parenthetical at the end). However, counsel evidently decided that this court was more interested in hearing about Hurlbert and issues of commerce (whether they related to the commerce clause or the privileges and immunities clause). I have a lot to learn.
Next up was the Solicitor General for Virginia, Earle Duncan Getchell, Jr. Before he could even get started, Justice Sotomayor jumped in to ask him about the intent of the statute, and whether it had any commercial effect. The Solicitor General answered that the statute was not commercial in nature, and that it was motivated by an internal policy interest of Virginians (an interest which was not entirely clear to me or to several of the Justices). The Chief Justice asked him why they don’t just make the records available anyway. He asked why they bother to keep others out. He observed that the cost of maintaining them is already incurred. Justice Scalia jumped in to ask, rhetorically, whether it is the law that the State of Virginia may not do things that are pointless, that only the Federal Government may do things that are pointless (reminding the room that this was, as far as he was concerned, a matter of state rights). There nevertheless ensued a great deal of questioning about why the law would exist in the first place, and the Solicitor General said that Virginia did not need to justify itself to out-of-staters. Justice Breyer noted that if there is a legitimate constitutional claim, then a justification of “meh” is not sufficient (I believe that this is close to a direct quote, but it is hard to transcribe the noise that the Justice made). Justice Kagan admitted that she was not present at the formation of state FOIA laws (ha ha), but suggested that they had in any case come to stand for not only sunshine but also the free flow of information. Several justices asked the Solicitor General about the commercial value or effect of the records, and he claimed ignorance (something that SCOTUS Blog discussed in their coverage). Near the end, Justice Scalia reminded the audience that the documents at issue were “owned” by the State of Virginia.
In his short reply, Gupta suggested that especially in a situation in which a state has monopoly control over a good that is essential to commerce and/or a common calling, it is unconstitutional for it to discriminate in granting access to it. McBurney was finally mentioned in the last two minutes of oral arguments. In between comments from Justice Scalia about how non-residents were taking advantage of records maintained using Virginians’ resources, Gupta made a very brief case for McBurney’s fundamental right of equal access to government records under the privileges and immunities clause.
Also, by my count, if you were taking a drink every time elk hunting was mentioned, you would have had to drink three times. Of course, you’re not allowed to bring beverages into the Supreme Court, and we’re not allowed to watch at home because Justice Sotomayor doesn’t think that we would understand what’s going on.