Supreme Court Update: Decision in Lopez Torres New York Judicial Election Case

In a unanimous decision, the United States Supreme Court, in New York State Board of Elections v. Torres, et al. (06-766) overturned a Court of Appeals for the Second Circuit decision, and a previous ruling by a federal district court in Brooklyn, regarding New York’s system of selecting judges through party conventions. The district court had issued a preliminary injunction against the current selection system, in favor of a direct primary election system, pending the New York Legislature’s adoption of a new scheme. The U. S. Supreme Court decision lets stand the current convention system for nominating Supreme Court candidates in New York State. (The Supreme Court of New York serves as the State’s trial court of general jurisdiction.) The American Judicature Society joined several former New York judges in an amicus brief filed in this case. 

New York’s unique system of selecting judges has been in place since 1921. Many justice system stakeholders viewed this case as a first-step opportunity to reform New York’s archaic system that is widely believed to be controlled by the political parties’ county leaders. The amicus brief argued, in part, that the New York public’s perception is that political party leaders, rather than voters, actually choose judicial nominees, which undermines the fact and the appearance of an independent and impartial judiciary. 

Justice Scalia authored the majority opinion holding that New York’s party convention system of choosing nominees for the State Supreme Court does not violate the First Amendment. Narrow framing of the issues in the majority opinion enabled Justice Scalia to skirt discussion of the wisdom of New York’s system of selecting judges and the arguments that it unconstitutionally threatens judicial independence and the fact and appearance of an impartial judiciary. The outcome, however, prompted the writing of two remarkable concurrences.  

Justice Stevens in concurrence, joined by Justice Souter, commended Justice Scalia’s “cogent resolution” of the constitutional issues before the Court, but thought “it appropriate to emphasize the distinction between constitutionality and wise policy.” Lending credence to the “broader proposition that the very practice of electing judges is unwise,” Justice Stevens closed his one-paragraph concurrence by quoting his former colleague, Justice Thurgood Marshall: “The Constitution does not prohibit legislatures from enacting stupid laws.” 

Justice Kennedy, joined by Justice Breyer as to Part II of the concurrence, began that discussion as follows: “It is understandable that the Court refrains from commenting upon the use of elections to select the judges of the State’s courts of general jurisdiction, for New York has the authority to make that decision.” Iterating that the Constitution does not allow the Court to intervene, he concluded that “If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now.” 

For further information and analysis of the Lopez Torres decision visit the New York Times, Scotusblog, and the Brennan Center.