Securities Regulation Daily Justices ponder Delaware constitution’s bar on third-party judges
Monday, October 5, 2020

Justices ponder Delaware constitution’s bar on third-party judges

By Anne Sherry, J.D.

The Supreme Court heard argument on whether Delaware can require its governor to balance Republican and Democratic judges on three of its courts—and whether a registered Independent who did not apply for a judicial position even has standing to challenge the constitutional provision.

On the first day of its October term, the U.S. Supreme Court heard oral argument concerning a provision of the Delaware constitution that requires the bench of some state courts to be balanced between Democrats and Republicans. The state is challenging a Third Circuit holding that the selection provisions violated the First Amendment, but much of the argument focused on whether the would-be judge who brought the case has standing under Article III (Carney v. Adams , October 5, 2020).

Delaware’s constitution restricts appointments to several of its courts in two interconnected ways. The bare majority provision limits the number of judges that are of the same "major political party." The major party provision requires that the other judicial positions be filled with members of the "other major political party." In effect, this means that most of Delaware’s courts must be filled with Republicans and Democrats only, and roughly balanced between those two parties.

The respondent before the Supreme Court, James Adams, is a registered Independent who said that he wanted to apply to Delaware judgeships, but knew that application would be futile because of the political-party restrictions on appointments. Adams won summary judgment in the District of Delaware, and the Third Circuit affirmed. In doing so, the appeals court invalidated both the bare-majority and major-party provisions because they work in tandem to achieve political balance and cannot be severed. The court also found that while Adams had standing to challenge the constitution’s provisions dealing with the Supreme Court, Superior Court, and combined balance of those courts along with the Court of Chancery, he lacked standing with respect to the Family Court and Court of Common Pleas. Adams could have applied, but did not apply, to judgeships on those latter two courts, which are not subject to a major-party restriction.

Standing. When the Supreme Court granted certiorari, it added a question asking whether Adams had Article III standing. This question consumed much of the oral argument as the justices tried to grapple with exactly how much intent to make a futile application is required to establish an injury. Justice Kagan observed that in cases before the Court challenging an admissions policy, the would-be applicant is not required to go through the motions of filing an application that would be denied under the policy. Counsel for Delaware repeatedly stressed that although Adams kept stating a desire to serve as a judge on any of Delaware’s courts, he never applied to any judgeships, even on the courts that do not have a major-party requirement.

Some of the line of questioning surrounding standing also implicated the procedural posture of the litigation. Justice Breyer asked whether the Court should hold a hearing to determine whether Adams was serious about wanting a judicial appointment. Adams’s counsel noted that neither lower court found reason to infer that Adams was not sincere, and said that whether testimony gives rise to an inference is a question of law, not fact. He added that both sides moved for summary judgment, so the state seemed satisfied that its case was ready. As soon as there is an impediment, there is standing, counsel said. On rebuttal, Delaware’s counsel said that the test isn’t whether Adams was sincere, but whether applying would be futile, and that is a question of fact. Ultimately, the question is whether a reasonable trier of fact could have found against Adams on summary judgment.

Justice Alito noted that because Adams won on summary judgment, the Court must look at the record in the light that is most favorable to the state. The most definitive statement from Adams was his testimony that he would "consider and apply for a future vacancy." While Adams’s counsel said that the "apply" portion brings the statement out of the realm of vague consideration, Alito countered, "if you’re going to apply, you’re done considering. And if you’re considering, you haven’t made up your mind whether you’re going to apply."

Merits. Justice Thomas asked Delaware’s counsel whether the state could pass a law requiring all judges to be members of one of the major parties. Counsel said no, because under Gregory v. Ashcroft (U.S. 1991) and Elrod v. Burns (U.S. 1976) qualifications must be reasonably appropriate. Justice Breyer then asked how the constitution doesn’t do the same thing—"If a majority are Democrats, the rest must be Republicans, the Green Party need not apply—it can’t." Delaware’s counsel characterized the major-party provision as a backstop to the bare-majority requirement to prevent the governor from appointing someone from an allied party or appointing an independent who used to be registered under a major political party, as Adams himself was. Under the state’s argument, the provision is constitutional because it advances the state’s interest in political balance and there is no other way to accomplish that balance.

On questioning from Justice Gorsuch about the history of the major-party requirement, Delaware’s counsel said that the state’s 1896 constitutional convention was an innovator in this area. The Justice said that prohibiting independents from serving as judges is "quite a sweeping rule" that the state’s counsel himself said would violate the Equal Protection Clause for elected positions. Justice Gorsuch said he did not understand why, in the absence of a historically rooted tradition, it should be different for appointed positions. Counsel said that the Court has approved limits on First Amendment rights as a condition to public service and added that the uniqueness of the provision actually counts in Delaware’s favor as the only state that has created such a "jewel" of a judiciary.

Justice Kavanaugh asked Adams’s attorney what he thought about the leave-well-enough-alone principle articulated by the state, that Delaware has achieved an excellent and widely respected judiciary under the appointments provisions. The respondent’s counsel said that there is no evidence that that excellence results from the political affiliation provisions, and in fact it is not even intuitive that the one led to the other. Instead, he said, it is an example of the illusory truth effect where when enough people say something, people tend to believe it.

On the topic of severability, Justice Sotomayor said that you can excise a portion of the major-party requirement and leave the bare-majority requirement intact. The Justice said there are three rights at issue: Adams’s right as an independent to seek a judicial appointment (limited by the major-party rule); the governor’s right to decide whom to appoint; and the state’s interests in balancing partisanship and promoting an independent judiciary. She posited that the bare-majority rule is adequate to take care of those two state’s interests, but the major-party requirement is not. In Adams’s counsel’s view, however, the language of the major-party and bare-majority requirements cannot be severed while remaining coherent. On rebuttal, Delaware’s counsel said that severability is "of enormous practical importance" because there is no justification for striking down the bare-majority requirement even if the major-party provision has to go. The former requirement is of grave importance to the state and stood on its own for many years, he added.

The case is No. 19-309.

Attorneys: Michael W. McConnell (Wilson Sonsini Goodrich & Rosati) for John C. Carney, Governor of Delaware. David L. Finger (Finger & Slanina, LLC) for James R. Adams.

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