Oral argument was heard last week by the Supreme Court in the donor disclosure cases in which The National Legal Foundation joined other organizations in filing an amicus brief. Our brief took the tack that California’s requirement for the disclosure of major donors of all charities in the state should be considered as a violation of the freedom of assembly, which has become a “forgotten freedom” in the Court’s jurisprudence over the last half-decade. Of the 40 or so amicus briefs in support of the charities, the Becket Foundation and ourselves filed the two briefs which argued this approach.
While the majority of the argument was spent on issues such as whether a facial constitutional challenge, or only an as-applied challenge, was appropriate and how to balance the competing interests and otherwise how exacting scrutiny was to be applied, Justices Thomas, Gorsuch, Kavanaugh, and Barrett all asked questions about the right of association and/or the right of assembly and whether privacy was an integral part of those rights, as we argued. Justice Kavanaugh in particular was focused on the right of assembly, and the counsel who argued for the charities referred him to the Becket brief, which was then mentioned several times by counsel and justices. (Our brief was not, even though we made a lot of the same points as Becket did.)
It is well known to be hazardous to prognosticate based on the oral argument, as the justices normally like to hold their cards close to their vests, but it appeared from the tenor of the questioning that the charities have at least six justices who will hold that a facial challenge was appropriate and that they prevail on both a facial and as-applied basis. There also appears to be a fair chance that Justice Kavanaugh will author an opinion based on the right of assembly, and it is to be hoped that any such opinion would prod the Court to think about that right “aright” again.