"The Constitution Does Not Prohibit Legislatures From Enacting Stupid Laws"

Thus spake Justice Stevens, concurring in yesterday's decision in New York State Bd. of Elections v. Lopez Torres, attributing the sentiment to Thurgood Marshall. The occasion for this remark was the upholding of New York's system of selecting nominees for judicial election by party convention (pejoratively, "smoke-filled rooms," although not in NYC, where the smoke would be prohibited) rather than by primary. In rejecting the 2nd Circuit's approach, which found a right to a "fair shot" of a candidate for judicial office to get on the ballot, Justice Scalia's opinion for the Court (which Justice Stevens joined) invoked the usual sorts of arguments one sees when a court says that the Constitution does not forbid all practices that could be questioned on policy grounds.

Here I'll limit myself to two observations: (1) It's striking that just about nothing in Justice Scalia's opinion turns on the fact that this is an election for a judgeship. One might think that the stakes are different, and that the public has a greater claim to participation, in an election for a legislative or executive office, but as I read the majority opinion, it would apply equally to the elimination of party primaries in candidate selection for other sorts of offices as well. In a concurrence in the judgment, Justice Kennedy (joined on this point by Justice Breyer) does suggest that the special nature of judicial elections should factor into the analysis, but he reaches the same conclusion as the Court (mostly because he thinks that the alternative means for a candidate getting on the ballot are adequate).

(2) Justice Stevens is on something of a "stupid laws" kick. He said more or less the same thing in his majority opinion in Kelo v. New London, practically inviting state legislatures to disavow the use of eminent domain for private development. And in the concluding paragraph of his opinion for the Court in Gonzales v. Raich (rejecting a Commerce Clause challenge to the failure of federal drug laws to exempt medical marijuana), Justice Stevens practically urged "the democratic process" to change the law. These observations are certainly fair enough, but it's not clear what audience they're intended to reach. Anybody who follows the Court's work at all understands that a judicial decision to uphold a law is not necessarily an endorsement of the law's policy; and people who don't follow the Court's work are unlikely to learn of these nuances. As evidence for the latter proposition, we need look no further than to the furor that Kelo caused, notwithstanding the disclaimer. (If you're someone who thinks Kelo was wrongly decided AND who understood the nuance, that's fine; this is a point about public opinion in general.)

Posted by Mike Dorf