A unanimous U.S. Supreme Court upheld New York State’s party-boss system for selecting judges today, fulfilling the gloomy predictions of legal scholars who had surmised as much from the tenor of the oral arguments in October.

After nearly four years of litigation, the historic lawsuit, Lopez Torres vs. NYS Board of Elections, has ended its journey through the federal court system.

Despite the efforts of reformers, New York Supreme Court justices will continue to be selected at conventions where hand-picked delegates essentially rubber-stamp the party leaders’ choices. Once anointed by the party, these candidates usually win at general elections, victory virtually guaranteed in Democrat-dominated areas such as New York City and many Republican-dominated areas Upstate.

“I am very pleased that the court found that the plaintiff’s case was baseless,” said Joseph L. Forstadt, the Stroock & Stroock & Lavan attorney who defended the Association of New York State Supreme Court Justices in federal court and before the U.S. Court of Appeals for the Second Circuit. (He deferred to famed constitutional lawyer and Gibson, Dunn & Crutcher partner Theodore B. Olson for the U.S. Supreme Court arguments).

“We knew all along that if we could get the ear of the court of final appeal, we would prevail.”

While the decision could be seen as a deathblow to the judicial selection reform movement in New York, Brennan Center counsel James Sample was still hopeful.

“The court’s analysis resolved the First Amendment claim, but the litigation remains very much live,” said Sample. “The fact remains that as a matter of policy, New York’s system is a faulty today as it was yesterday. We will continue to push for reform.”

A number of possible avenues still exist for reformers. The U.S. Supreme Court did not rule out an argument about the constitutionality of the convention system on a state level. Additionally, reformers could argue that the judicial convention system breaks the U.S. Constitution’s Equal Protection Clause or convince the state Legislature to enact new election laws.

Frustrated judicial candidates and the Brennan Center filed the suit in 2004, arguing that the state’s system for selecting judges was unconstitutional.

In January 2006, U.S. District Judge John Gleeson wrote a lengthy opinion that agreed with them, ruling that the convention system violated the U.S. Constitution by allocating to party bosses too much control over the selection process.

Gleeson had ordered the New York Legislature to create a better system, and the Second Circuit upheld his opinion in August 2006.

Gleeson called for primaries for judicial candidates in the meantime, but stayed his decision for two election cycles while the case traveled through the appellate system.

Before the U.S. Supreme Court granted review last February, the decision had inspired reform dialogues among advocates, good government groups, members of the judiciary, representatives in the Legislature, and members of both mainstream and minority bar associations.

Justice Antonin Scalia — the most vocal and emphatic critic of the Brennan Center’s argument — wrote Wednesday’s decision. His opinion cut to the bone of the argument and defended the autonomy of party leaders:

“Respondents’ real complaint is that the convention process following the delegate election does not give them a realistic chance to secure their party’s nomination because the party leadership garners more votes for its delegate slate and effectively determines the nominees. This says no more than that the party leadership has more widespread support than a candidate not supported by the leadership.”

Despite that firm language, the decision also included two concurring opinions with some interesting caveats.

Strikingly, the two justices that experts predicted would be most sympathetic to the reformers’ cause both weighed in together with a concurring, opinion that hinted at the possibility of other options for the reformers on the state level.

Stephen G. Breyer, thought by some to be a possible reform ally because of his “good government” reputation, joined Anthony M. Kennedy on the concurrence:

“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. But, as the Court today holds, and for further reasons given in this separate opinion, the present suit does not permit us to invoke the Constitution in order to intervene.”

Justice John Paul Stevens wrote a separate concurring opinion, joined by Justice David Souter, making a loaded statement that should invigorate some reformers who may continue the battle on a state-wide level — despite losing the federal argument.

Addressing the "glaring deficiencies" in the state's convention system as outlined in Gleeson's opinion, he wrote:
 
"I think it appropriate to emphasize the distinction between constitutionality and wise policy ... as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"

While no new moves have been announced, one Brennan Center supporter tried to rally reformers in a statement today:

"The plaintiffs are considering further litigation options. In the meantime, we urge the political, civic, and bar leaders who stood up for reform to continue to stand with us, demanding legislation that will end the closed process, which has, for too long, undermined public confidence in New York's courts," said Kent Yalowitz, the Arnold & Porter partner who served as co-counsel for the Brennan Center’s lawsuit.

“I don’t envision the legislature throwing out the convention system in light of this decision,” said Forstadt, when asked about the continuing hopes of reformers.