Political Parties, Under Challenge, Seem to Have Justices' Sympathy

"No, your honor, it does not," McKenna answered.

"If we found that that was the necessary effect of this ballot measure, then would it be invalid?" Kennedy responded.

The court's other case was New York State Board of Elections v. Lopez Torres. Margarita Lopez Torres is challenging the convoluted system for electing trial judges, devised by the state legislature, in which it is virtually impossible to win without the blessings of party leaders. An appeals court struck down what it called a "Byzantine and onerous network of nominating phase regulations employed in areas of one-party rule," but justices in oral arguments last week looked at it from the parties' point of view.

"The party hierarchy . . . wants to fence out the insurgents," Justice Samuel A. Alito Jr. said. "Does not the right of association include the right not to associate?"

Everyone has the same chance to seek the blessings of politicos, said Justice David H. Souter, just as the politicos have the right to say to those they don't want -- here Souter used a word you don't hear much at the court -- "scram."

"For political reasons, they're saying: 'We don't like you,' " Souter added, noting that he was having trouble finding a constitutional problem with that.

Former solicitor general Theodore B. Olson, arguing for the state board, agreed that "party leaders act like party leaders and exercise their influence."

A Rare (Chuckle)

It's pretty serious business at the court, and light moments are few. But when one of the justices displays a bit of wit, or sometimes a bit of sarcasm, he or she is rewarded with what the official transcript of the oral arguments records as (Laughter).

Scalia usually gets most of these, but Roberts was on top of his game last week.

During the Washington state arguments, Justice Ruth Bader Ginsburg asked how voters in Washington associate themselves with political parties, since they do not register that way.

John J. White Jr., representing the Washington State Republican Party, said they could do so in a variety of ways, including making campaign contributions or attending party nominating conventions. The Libertarian Party, he said, requires membership applications and pledges.

Roberts could barely contain himself: "Libertarians have a lot more rules than the other parties."

(Laughter.)