Bench Memos

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Politician-Justices Against Judicial Elections


Just a comment on today’s Supreme Court ruling in New York State Board of Elections v. Torres, in which the Supreme Court ruled (unanimously on the result, with only Justice Kennedy not joining Justice Scalia’s opinion for the Court) that New York’s law requiring political parties to use conventions to select their nominees for the general-election ballot for judgeships does not violate the First Amendment:


Every judge may be predisposed to discern the high merits of the particular system of judicial selection that resulted in his appointment, and there’s no doubt that a system of popular election of judges has significant potential flaws, not least of which is the tendency to turn judges into politicians.  Still, it’s rather surprising that four justices went out of their way to offer their policy views against election of judges.  Justice Stevens, joined by Justice Souter, wrote a brief concurring opinion purporting to “emphasize the distinction between constitutionality and wise policy”—a distinction that Scalia’s opinion repeatedly made—but in fact going much further to signal his agreement with “the broader proposition that the very practice of electing judges is unwise.”  And Justice Kennedy, in a portion of his opinion that Justice Breyer joined, raised the “persisting question” whether a system of popular judicial election “is consistent with the perception and the reality of judicial independence and judicial excellence.” 


What is particularly galling is that these justices (along with Justice Ginsburg) have signed their name (in Planned Parenthood v. Casey or in Lawrence v. Texas or in both) to the absurd proposition that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  As these justices have amply shown through their decisionmaking, that “mystery” declaration is nothing less than a claim of unconstrained power to define for all Americans which particular interests those justices think should be beyond the bounds of citizens to address through legislation.  In other words, the very justices going out of their way to decry an election system that can turn judges into politicians are (along with Justice Ginsburg) the justices who are the most like politicians in robes and who believe that they have willy-nilly authority to act as superlegislators to override the democratic processes. 

Tags: Whelan


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