March 19, 2008
Yesterday's Supreme Court decision in Washington State Grange v. Washington State Republican Party is interesting on a couple of levels. Coupled with the Court's January decision in the case involving New York's system for nominating candidates to run for judicial elections, the Court seems to be signalling pretty clearly that it's not eager to get into overturning state primary election procedures - a signal the national Democrats are hopefully receiving, not that there's been any move just yet for the loser to follow the Al Gore plan.
Anyway, the short summary is that the Court ruled 7-2 to uphold a state open election system that allowed candidates from all parties to run in an initial election with their chosen party listed, without having been nominated by the party, followed by a runoff for the top two candidates; the major parties challenged the constitutionality of this procedure under a 2000 decision invalidating California's "blanket primary" under the First Amendment's right to freedom of association. The crux of the Washington case was whether the parties have a right to prevent candidates who have not been nominated by the party from using the party label on a ballot open to the general public.
Justice Thomas, writing for the Court, said no:
The flaw in this argument is that, unlike the California primary, the I-872 primary does not, by its terms, choose parties’ nominees. The essence of nomination - the choice of a party representative - does not occur under I-872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. ...
[R]espondents' assertion that voters will misinterpret the party-preference designation is sheer speculation. It "depends upon the belief that voters can be 'misled' by party labels. But '[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.'"... There is simply no basis to presume that a well-informed electorate will interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee or representative or that the party associates with or approves of the candidate.... This strikes us as especially true here, given that it was the voters of Washington themselves, rather than their elected representatives, who enacted I-872.
(Citations omitted). Chief Justice Roberts, joined by Justice Alito, concurred but stressed a point touched on by the majority: that the issue of voter confusion really could not be assessed without examining the ballot, which has not been designed yet:
Voter perceptions matter, and if voters do not actually believe the parties and the candidates are tied together, it is hard to see how the parties' associational rights are adversely implicated. ...After all, individuals frequently claim to favor this or that political party; these preferences, without more, do not create an unconstitutional forced association.
...[T]here is no general right to stop an individual from saying, "I prefer this party," even if the party would rather he not. Normally, the party protects its message in such a case through responsive speech of its own.
Justice Scalia, joined by Justice Kennedy, dissented, arguing that the parties have to have greater control over their own message, including their membership, alluding even to the hot issues of the day:
The views of the self-identified party supporter color perception of the party's message, and that self-identification on the ballot, with no space for party repudiation or party identification of its own candidate, impairs the party's advocacy of its standard bearer. ...
...[T]hrusting an unwelcome, self-proclaimed association upon the party on the election ballot itself is amply destructive of the party's associational rights. An individual's endorsement of a party shapes the voter's view of what the party stands for, no less than the party's endorsement of an individual shapes the voter's view of what the individual stands for. That is why party nominees are often asked (and regularly agree) to repudiate the support of persons regarded as racial extremists.
Not only is the party's message distorted, but its goodwill is hijacked. There can be no dispute that candidate acquisition of party labels on Washington's ballot - even if billed as self-identification - is a means of garnering the support of those who trust and agree with the party. The "I prefer the D's" and "I prefer the R's" will not be on the ballot for esthetic reasons; they are designed to link candidates to unwilling parties (or at least parties who are unable to express their revulsion) and to encourage voters to cast their ballots based in part on the trust they place in the party's name and the party's philosophy.
...Is it enough to say on the ballot that a notorious and despised racist who says that the party is his choice does not speak with the party's approval? Surely not. His unrebutted association of that party with his views distorts the image of the party nonetheless.
...It is no mystery what is going on here. There is no state interest behind this law except the Washington Legislature's dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates. That was the purpose of the Washington system that this enactment was adopted to replace - a system indistinguishable from the one we invalidated in Jones, which required parties to allow nonmembers to join in the selection of the candidates shown as their nominees on the election ballot.... And it is the obvious purpose of Washington legislation enacted after this law, which requires political parties to repeat a candidate's self-declared party "preference" in electioneering communications concerning the candidate - even if the purpose of the communication is to criticize the candidate and to disavow any connection between him and the party.
It's a close case; Justice Scalia, as usual, has the firmest grasp of political theory and practice on the Court, although that doesn't necessarily mean that what is politically bad is also constitutionally bad; I think I would be inclined to side with the majority's view that as long as the ballot itself is not actively deceptive, the party's ability to engage in pre-election speech should be able to cure the possibility of a David Duke, a Lyndon LaRouche or an Al Sharpton hijacking its reputation and good name.
If I understood it correctly, there were two main points: one was that the primary of all candidates lead to a general action with just the top two vote candidates , regardless of party affiliation. Secondly, a concern of voter confusion had to take a back seat to the fact that the *voters themselves* selected this system. The "I" in "I-872" stands for Initiative - the new system was a voter initiative that passed its own election.
Justice Scalia, as usual, has the firmest grasp of political theory and practice on the Court
And, in the process, Scalia shows his usual disdain for individual rights, states rights, and anything truly resembling a fundamental reading of the Constitution or the law.
Scalia has to be joking. He actually believes that the 1st Amendment rights of a political party somehow trump those of the electorate, of the candidates, of the state citizens that passed the initiative? Scalia's continuing slide from conservative iconoclast to Republican party mouthpiece continues unabated.
Thomas is far more of a conservative under its traditional definitions than Scalia. Far more respecting of individual rights.
I was at the Court yesterday--my wife was admitted. It was a very interesting experience. My impressions:
1. Beautiful building, and frankly, the importance of the place is clear. Cass Gilbert did a great job designing it, and the court officers are very well trained. Polite, helpful, and extremely competent and thorough. You get a good feeling walking in here.
2. Alito read an opinion, overturning a capital case. Someone in Louisiana was convicted and sentenced to death, but claimed in his appeal that someone black was unfairly excluded from the trial. In a 7-2 opinion, Alito summed it up, making it pretty clear he knew a tuna when he smelled one. He gave some very concise facts on what led to a clear overturning of a bigoted judge. Scalia and Thomas dissented. Scary that they did, but what can you do?
3. The arguments yesterday meant more to a lawyer than to me, but I was pretty clear that Breyer and Scalia talked for the sake of doing so. Breyer liked to lecture, and Scalia liked to trick with questions he already knew the answers to. They were both singularly unimpressive. Considering you already know how they will vote (making them both damn useless), why don't they just read the briefs (what a stupid name) and ask what isn't there. Roberts (especially him), Alito and Souter did that. They asked follow up questions to the whole case, meaning they read and cared about what was going on. Nor could you tell how they would vote. I was very impressed by Roberts.
3. Thomas had nothing to say as usual, but his body language, and his review of papers clearly meant he was listening to what was said. Maybe he's right. With Breyer and Scalia there to run on, what more is there to say?
4. I heard that Renquist would immediately stop the lawyer when the red light went on, even in mid-word. Roberts let the lawyer finish until a cogent answer was given. Very civil of him. He ran the court they way I always thought it should be run. With civility, decorum and understanding.
Interesting, Daryl. I was actually at the Court Monday for the third time this year hearing one of my cases argued (we represented amici in all three cases, although for unusual procedural reasons the amicus we represented Monday was actually the original plaintiff in the case). It's striking how small the courtroom is. There's nothing like it. Thomas chats with Breyer a good deal and each time I was there he sent away for a volume of the US Reports during the argument, and also stares at the ceiling a lot while he listens to argument. He has his own reasons that he's explained on a number of occasions why he doesn't ask questions, but the downside when you have a case there is you can't get any clue where he is going to go.
You are 100% right about how Roberts runs the show, especially with the admission of new attorneys and the questioning of nervous lawyers, although in one argument I did see an occasion when Breyer trapped a government lawyer into saying something Roberts considered objectionable (she had referred in a criminal case to the number of people who would be let out of jail if the Court reversed), and he basically sprung and took her apart for raising it, albeit without sounding querolous while doing it. Alito seems to favor the sleeves-rolled-up look with the robes; if you did not know who on the Court had recently arrived from a long career on a Circuit, you could tell. Actually, I think Souter may have asked the most questions in the arguments I was there for. But then, in commercial cases Souter tends to be one of the swing votes.
Crank, let's be honest now. Name three cases in ten years where Thomas voted in a way you couldn't predict.
Maybe not in hot-button social-issue cases, or cases where he has already staked out a clear position on the law. But there are plenty I can think of. I might not have predicted how he would come out in the Washington case this post is about. I didn't predict his dissent in the RICO proximate cause case, Anza v Ideal Steel, or his opinion in the Swierkiewicz case on pleading an employment discrimination claim, or his opinion on foreign sovereign immunity in the Permament Mission of India case, to name a few.
Predictability can be good and bad. A judge who is predictable because he always sides with the same types of parties or results is bad. A judge whose views of the law are predictable as the sun rising is good. I may not buy 100% into the Chief Justice's umpire analogy, but a judge who is nearly indistinguishable from Questec is probably doing a pretty good job.
Daryl & Crank - Thanks for the reports on the Court. Cool stuff.