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Argument recap: Agnosticism as an argument


It may not be enough to win a Supreme Court case to claim to be agnostic about a critical issue in the case, even if Justice Antonin Scalia has essentially teamed up to bolster the rest of that lawyer’s argument.  Virginia’s top advocate in court, state Solicitor General Earle Duncan Getchell, Jr., put his case in considerable jeopardy by pretending not to know something that most of the Justices seemed to treat as obvious.

On analysis, what had happened to Getchell was that he had come prepared to make one, and only one, argument, and could not adapt when the hearing moved in a different direction.  The case was McBurney v. Young (12-17), testing whether a state can open its records to public access, but then limit access mainly to state residents.

Before Getchell took the lectern, it was quite obvious that the case was going his way. The Justices, all across the bench, made it very difficult for the attorney on the other side — Washington lawyer Deepak Gupta.  Although his woes could easily be exaggerated by making too much of Justice Scalia as a determined adversary, neither of Gupta’s basic arguments was working very well for him.

Gupta’s two clients, non-Virginians, were denied access to records held by Virginia state agencies, because of the residents-only limitation that regulates access to many (though not all) records of those agencies.   That, their attorney contended, violated their rights under the Constitution’s “privileges and immunities” clause and the Commerce Clause.

Scalia made it clear, from the very outset, that he was having none of either argument, because he had apparently bought the state’s argument that it had opened up its records only in a civic gesture to help Virginians monitor how their government was working.   Scalia said he was around when the modern freedom-of-information movement began, and he was sure it was limited to putting government on display to its own constituency.

In fact, Scalia went so far to suggest that Virginia was entitled to keep “outlanders” from “mucking around” in that state’s government.  So, it was easy to put Scalia’s points aside.   Even doing that, however, was no great help to Gupta, since Justices of all philosophical bents seemed to belittle the significance of his constitutional claims.   It was suggested that he was not arguing in favor of any “fundamental” right protected by the privileges clause, and that Virginia had not really put a burden of any consequence on out-of-state data-gatherers, so that there was no Commerce Clause violation.

When Getchell rose, if he was not misled by Scalia’s bluster, he appeared to be over-confident about his chosen line of argument: Virginia had opened up its records for one purpose and one purpose only, he said, and that was to let its citizens monitor their government.   “The purpose of the statute is political, not commercial,” he said in his response to the very first question from the bench, and he would not move beyond that, no matter how the Justices probed the commercial impact.

Justice Elena Kagan, who made a point of noting that she was not around early enough to be an expert on freedom-of-information laws, seemed to be speaking for most of the Justices when she pressed Getchell on whether Virginia might have had two purposes for the law: one to open up its government, but also one to contribute to the free flow of information.

Virginia’s lawyer said he “had no idea” whether the law would have an effect on commerce in information, and soon began saying — and repeating — that he was “agnostic” about any commercial impact.   He persisted in that contention even though Kagan told him that data-gatherers from across the country had actually “taken over” state freedom-of-information laws in pursuit of their country-wide business.

At one point, Justice Anthony M. Kennedy said, “Let’s talk about the commercial value” of state records.  Even if Getchell claimed to be “agnostic” on the point, Kennedy said, the Court could take judicial notice that “there is commercial value” in those files.

When Justice Scalia tried to help him out by commenting that “I didn’t understand you to say that there is no commercial value” in the records, Getchell responded: “It doesn’t matter.  There is no regulation of commercial; this is a governmental statute.”

Justice Kagan kindly suggested that Getchell “has a very good case” that the statute was meant to serve the purpose of opening government to its Virginia constituency, but she noted that Virginia was only one of two states across the country that felt the need to shut out data-gathering companies from outside the state.   It was a gentle way of suggesting that Getchell had over-worked the open government theme.

A portion of Gupta’s rebuttal time was used up by Justice Scalia, defending Virginia’s claimed right to keep outsiders from taking advantage of records that Virginia’s taxpayers had provided by developing and maintaining records.


Recommended Citation: Lyle Denniston, Argument recap: Agnosticism as an argument, SCOTUSblog (Feb. 20, 2013, 2:37 PM),