The U.S. Supreme Court and the Institutional Role of Parties in
the Political Process:
“Post” modern Developments
Ronald L. Nelson
INTRODUCTION
The involvement of the American judiciary in the politics of the political process is an
increasingly familiar occurrence on the American political scene. As courts throughout the
nation wrestle with such issues as the presidential election process, vote counting, political
patronage, primary procedures, and campaign financing, the views regarding the institutional
role of the American political party held by the U.S. Supreme Court becomes particularly
significant. Even though political parties are not mentioned in the Constitution, some recent
pronouncements from the Court suggest a view that the parties have a special, traditional─even
privileged─role within the American system. For example, we are told by Justice Anthony
Kennedy in Colorado Republican FCC v. FEC, 518 U.S. 604, 630 (1996) (concurring and
dissenting) and in McConnell v. FEC, 540 U.S. 93, 320 (2003) (dissenting), that the political
parties are part of a “constitutional tradition.” This tradition is also alluded to by Justice
Kennedy in California Democratic Party v. Jones, 530 U.S. 567 (2000) (concurring:
Our constitutional tradition is one in which political parties and their candidates make
common cause in the exercise of political speech. . . . There is a practical identity of
interests between parties and their candidates during an election. (589)
And, in Vieth v. Jubelirer, 541 U.S. 267 (2004), Justice Antonin Scalia finds a constitutional
basis for privilege that requires deference to the actions of political parties. He sees parties as
Assistant Professor, Department of Political Science and Criminal Justice, University of South Alabama, Mobile,
Alabama. This paper was prepared for presentation at the 2006 Annual Meeting of the Southern Political Science
Association in Atlanta, Georgia January 5-7, 2006. ## email not listed ##.
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