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U.S. Supreme Court

Scalia Uses Oscar the Grouch Analogy to Support Political Party Rights

Posted Mar 20, 2008 7:31 AM CDT
By Debra Cassens Weiss

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Justice Antonin Scalia showed his familiarity with Oscar the Grouch in a dissenting opinion on Tuesday that supported the right of political parties to affiliate with candidates of their choosing.

Tony Mauro of Legal Times did a database check and found Scalia's mention of the Sesame Street character was the first-ever in “the annals of Supreme Court jurisprudence.”

The issue was whether a Washington state law, which never went into effect because of court challenges, violated the First Amendment right of political parties to associate with candidates of their preference. The measure allowed candidates in a primary to designate their own political party preference, even if the party finds them repugnant. The top two vote-getters would advance to the general election, regardless of their party affiliation.

The U.S. Supreme Court majority opinion said the statute was not invalid on its face. Justice Clarence Thomas wrote for the majority that assertions of possible voter confusion were “sheer speculation.”

In a concurring opinion, Chief Justice John G. Roberts Jr. agreed that confusion was not certain just because a candidate claimed to like a particular party. To illustrate, Roberts said the statement “I like Campbell’s soup” would not necessarily imply any connection with the soup’s maker.

Scalia disagreed, according to the Legal Times account. The Washington law, he said, was tantamount to allowing “Oscar the Grouch (Sesame Street's famed bad-taste resident of a garbage can)" to endorse Campbell’s soup, without allowing the company to distance itself from the statement.

Mauro writes about the decision, Washington State Grange v. Washington Republican Party, in more detail in an article for the First Amendment Center.

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