New York’s system for trial level judicial elections, in which party leadership has the upper nominating hand, won a reprieve in the U.S. Supreme Court last week, dousing a First Amendment challenge backed by U.S. District Court and the Second Circuit rulings.

In an opinion written by Justice Antonin Scalia, the court in New York State Board of Elections v. Torres (U.S. Jan. 16, 2008) rebuffed the claim of a would-be judicial candidate that she faced insurmountable odds in seeking nomination from the dominant party in her district.

Stressing the First Amendment rights of the political party rather than the candidate (and giving a wide berth to the state’s legislative choices in election procedure), the court shot down the plaintiff’s argument that she was unfairly shut out. Although New York law requires primaries, it is distinctive in that the primaries actually elect only delegates who later convene to pick a judicial slate. The heart of Margarita Lopez Torres’ challenge was that party leadership exerted persuasive control at the delegates’ convention, excluding those (such as her) who were allegedly disfavored because they were known to oppose certain patronage demands. Scalia, and the seven other justices who joined him, could probably have rested their decision on the ground that quite apart from the primary system the plaintiff could have run in the general judicial election. All she needed was a petition bearing 4,000 or perhaps fewer signatures, depending on the district and prior voter turnout. Perhaps because Torres also wanted the boost of party approval, the opinion went farther. Indeed, it holds that the First Amendment is actually a shield for the political party, not a sword for the claimant.

The associational rights of a party, in other words, trumps any claims that the Constitution entitles those who were called but not chosen a “fair shot.” Scalia answered the plaintiff and the lower courts with a taut nimbleness that Calvin Coolidge could only have admired. Scalia summarized that that Torres was merely complaining that “the party leadership has more widespread support that than a candidate not supported by the leadership.” That, of course, has been so since Argos was a pup.

As to the flexibility of the state legislature to define a primary system, Scalia was generous and once again eloquent, “We are not inclined to open up this new and excitingly unpredictable theater of election jurisprudence. Selection by convention has been a traditional means of choosing party nominees. While a state may determine it is not desirable and replace it, it is not unconstitutional.” He concluded by explaining that the alleged domination by one party in a given district is no more relevant to the point than domination by two or more parties.

In what amounts to a small surprise in a Supreme Court term likely to be defined by rough ideological splits, the Justices in this case all agreed with the single judgment. Only Justice Anthony M. Kennedy broke ranks by stating a narrower ground for the court’s decision. He would have found “considerable force” in Ms. Torres’ First Amendment arguments if she did not have an alternative route to get into the general election by collecting signatures on a petition. This marks a rare stand-alone by the Justice thought to be the crucial swing vote between the so-called liberal and conservative factions. The decision in Torres also has several other striking features that go beyond elevating the rights of association of political parties and reaffirming that states are fully within their prerogatives in electing judicial officers. Conspicuous by omission from the opinion of the court, for instance, is the absence of criticism about election versus appointment of state judges. This vacuum prompted Justice John Paul Stevens to write a short concurrence, in which Justice David H. Souter joined, asserting his personal view that electing judges is constitutional but “unwise” as a practice.

Far more instructive, however, are the remarkable words of Kennedy, in Part II of his separate concurrence in the judgment. Although it is clear that Kennedy was not in love with the New York system, he took no shot at judicial elections in general. Instead, after noting the importance of judicial independence and the potential pitfalls of fund raising and campaigns, he turned inspirational:

“[T]hough the Framers did not provide for elections of federal judges, most States have made the opposite choice, at least to some extent. In light of this longstanding practice and tradition in the States, the appropriate practical response is not to reject judicial elections outright but to find ways to use elections to select judges with the highest qualifications. A judicial election system presents the opportunity, indeed the civic obligation, for voters and the community as a whole to become engaged in the legal process. Judicial elections, if fair and open, could be an essential forum for society to discuss and define the attributes of judicial excellence and to find ways to discern those qualities in the candidates. The organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy must engage in this process.” So much time has been wasted in recent years in Pennsylvania with proposed, and sometimes clever, challenges to the right to vote for judges, often without regard for the divide that would create between disenfranchised voters and the legal process. Perhaps the opportunity has come to recognize that such energies would be better channeled in the way Kennedy describes. n