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A 9-0 reversal? Sorry, my bad!

By Mark Obbie

What a perfect example of the difference between judging and policy-making. The Supreme Court's decision yesterday in New York State Board of Elections v. Lopez Torres (pdf file) -- a challenge to New York's much-maligned system of electing trial judges -- neatly illustrates several points that I and my fellow teachers in this new course on law, politics and media were making yesterday in our first session. Ever since a federal district judge in January 2006 ruled the state's election scheme unconstitutional, and especially after the 2nd U.S. Circuit Court of Appeals affirmed that decision, reporters covering the fallout have tended to accept without skepticism that the system is irretrievably broken. The only real issue has been what solution the state Legislature (insert snide adjectives here) would craft, now that it has a judicial gun to its collective head. Rarely if ever in that political and legislative news coverage did reporters hit the pause button and turn their attention to whether the courts that had heard the case thus far were on solid ground.I know I was guilty of that, and more, in covering one of the legislative hearings convened after the state lost its appeal. Given one day to digest a complex political chronology, I read some news stories about the courts' decisions; skimmed the 2nd Circuit's decision; read some of the advocates' summaries of those decisions; talked to as many experts I could about what the future held; attended the hearing; and banged out a story in a couple of hours on deadline. I focused on the policy choices that would respond to the rulings, but didn't question the rulings themselves. In part, that was simply a creature of the assignment: to report on a hearing that focused on what the state should do to replace its system of electing trial judges. This wasn't, at that stage, a debate about the merits of the rulings, which held that the state's system violates candidates' and voters' First Amendment rights of access to the ballot and of the right of association.If that sounds like the legal stretch that it is, the outcome of the decisions didn't seem nearly as far-fetched. Explicitly or not, reporters like me were thinking that the state's system of letting political bosses essentially choose trial judges who then run unopposed in sham elections is so obviously rigged and wrongheaded that the courts must be correct. A breathtaking (in retrospect) example is this line by Times metro writer Joyce Purnick, in a glowing portrait of plaintiff Margarita López Torres following her victory in district court: Now that the supposedly perfunctory appeal has turned out otherwise -- and, in fact, the legal question (as distinct from the policy question) is a slam-dunk and emphatic "no" -- the prospects for legislative reform appear unlikely. Judicial Reports' Jason Boog, who's covered the story more heavily than most, lays out the options in this story.More to the point of this blog, yesterday's high court decision reminds us, in Justice John Paul Stevens' words, of "the distinction between constitutionality and wise policy." Linda Greenhouse's story on the decision bluntly assesses the reformers' failure to convince "a single justice [of]  the plaintiffs’ claim that the system was unconstitutional." Of course, Greenhouse told us it would be so in her story on the case's oral arguments last October. That was the consensus among experts and in the stories at that stage of the case, but by then many of us had treated court-imposed change as inevitable.So what are the remedies? More skepticism about the legal merits and survival prospects of lower court decisions, and taking the time to examine those factors while politicians react to court-ordered reforms. Not assuming that good-government types have as solid a legal cause as they do a political one. And carefully reading the court decisions that start such debates -- with expert interpreters by our side -- to explain better what exactly a court meant when it found something unconstitutional. Was it a clear-cut conflict with the express terms of the Constitution? Or was it merely a desired outcome searching for a legal justification?

Full post as published by Lawbeat on January 17, 2008 (boomark / email).