The Supreme Court ruled Wednesday that the Constitution does not require a state to use a primary election to select state judges. The decision found that New York did not violate the First Amendment by choosing its lowest-level judgeship nominees by a party convention.  The result in New York State Board of Elections v. Torres, et al. (06-766) was unanimous, although there were two concurring opinions.

This was one of two rulings on the merits. In the second, the Court ruled unanimously that investment advisory fees paid by a trust cannot be deducted in full on federal tax returns.  Such fees are subject to the same limit that applies to individuals’ right to itemize deductions — only the amount above 2 percent of adjusted gross income. the Court ruled in an opinion written by Chief Justice John G. Roberts, Jr.  The decision came in the case of Knight v. Commissioner of Internal Revenue (06-1286).

The judicial election case involves a system in use in New York since 1921, requiring parties to choose their nominees for state “Supreme Court” judges by a convention of delegates who are political party members — a system that appears to be unique in the nation.  In New York, the “Supreme Court” is the original trial court, not the state’s highest court (which is called the Court of Appeals).  The challengers to the convention system argued that it is run by party bosses, making it hard for potential candidates not favored by the party apparatus to get chosen.  The system was struck down by the Second Circuit Court; that is the result the Supreme Court overturned in Wednesday’s ruling.

Justice Antonin Scalia, who wrote the Court’s opinion, said the Court in the past has allowed states to offset the influence of party bosses by requiring selection of candidates by processes that are more favorable to insurgent candidates — such as a primary election. “But,” Scalia added, “to say that the state can require this is a far cry from saying that the Constitution demands it.  None of our cases establishes an individual’s constitutional right to have a ‘fair shot’ at winning the party’s nomination. And with good reason. What constitutes a ‘fair shot” is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party’s associational rights. But it is hardly a manageable constitutional question for judges…We are not inclined to open up this new and excitingly unpredictable theater of election jurisprudence.”

Scalia also noted that, if a would-be candidate cannot get the party’s nomination at a convention, state law allows candidates to get on the general election ballot through a petition drive.

Scalia’s opinion was joined by seven other members of the Court. Justices John Paul Stevens joined the opinion but also wrote separately, joined by Justice David H. Souter, to stress that the Court was not ruling on the wisdom of New York’s approach. “The Constitution does not prohibit legislatures from enacting stupid laws,” Stevens wrote, quoting the late Justice Thurgood Marshall.  Justice Anthony M. Kennedy only supported the result, not the Scalia opinion. Kennedy wrote separately to raise questions about the wisdom of picking judges by popular election.  “The persisting question,” Kennedy wrote, “is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence.” Justice Stephen G. Breyer joined in those thoughts by Kennedy, but did not join all of the concurrence and did add his name in support of the Scalia opinion.

Posted in NY Board of Elections v. Lopez-Torres, Uncategorized