Case No. 19-309 | 3d Cir.
October 5, 2020
Preview by Austin Martin, Senior Online Editor
Delaware’s Constitution requires that the judiciary be politically balanced. The “bare majority provision” restricts Delaware’s three business courts—the Supreme Court, Superior Court, and Court of Chancery—from individually or collectively having more than a single-judge majority from any political party. Del. Const. art. IV § 3. Additionally, the “major party provision” requires that the remaining judges be members of the other major political party. Id. Delaware’s Family Court and the Court of Common Pleas are also restricted by a major party provision. Id. James Adams, a hopeful applicant for a judicial position in Delaware, sued the Governor of Delaware, John Carney, on the grounds that he was categorically denied eligibility to be a Delaware judge because he is a registered Independent, rather than a Democrat or Republican, thereby violating his First Amendment right to freedom of association.
There are three issues in this case. The first, which the Supreme Court instructed the parties to address, is whether Adams has standing to sue in an Article III court. The Governor asserts that Adams could never be injured by the bare majority provision because, as an Independent, he could never violate the provision by creating a supermajority of one party. Carney also argues that Adams manufactured standing by switching his registration from Democrat to Independent in 2017, and that his claim based on future intentions to serve on any Delaware court lacks concreteness. Adams contends that he is still injured because the bare majority and major party provisions categorically exclude him from employment as a judge. He further argues that his decision to become an Independent was based on “political conscience” protected by the First Amendment. Brief for Respondent at 19, Carney v. Adams, No. 19-309 (U.S. filed Feb. 20, 2020).
If Adams has standing, the Court must next decide whether Delaware’s political balance provisions are constitutional under the First Amendment. The Governor asserts it is appropriate and consistent with the First Amendment for the state to consider party affiliation in appointing judges because they exercise significant legal-political authority as “policymakers.” Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980). Additionally, instead of being subject to strict scrutiny under the First Amendment, Carney argues that “States should receive substantial deference in determining whether partisan affiliation is an ‘appropriate’ qualification (Branti, 445 U.S. at 518) for ‘state elective and important nonelective executive, legislative, and judicial positions.’” Brief for Petitioner at 34, Carney v. Adams, No 19-309 (U.S. filed Jan. 21, 2020) (quoting Gregory v. Ashcroft, 501 U.S. 452, 462 (1991)). Adams counters that the Third Circuit’s definition of “policymakers” as officials who “reflect the political will and partisan goals of the party in power” correctly excludes judges and thus renders political affiliation an inappropriate criterion for consideration. Brief for Respondent at 25 (quoting Adams v. Governor of Delaware, 922 F.3d 166, 179 (3d Cir. 2019)). Additionally, Adams argues that restricting judicial appointments based on political affiliation serves no “compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms.” Id. at 35 (quoting Janus v. Am. Fed’n of State, Cty. and Mun. Emps., Council 31, 138 S. Ct. 2448, 2468 (2018)).
Finally, if the Court finds only the major party provision unconstitutional, it must decide whether it is severable from the bare majority provision as applied to Delaware’s business courts. The Governor cautions that “[a]n implied exception to standing for severability would create numerous opportunities for litigation mischief.” Brief for Petitioner at 49. He further asserts that Delaware law allows severability and should control. Adams counters that the provisions are not severable, pointing to legislative history to argue that the major party provision is “integral to the proper functioning of the Political Balance Provision.” Brief for Respondent at 52.
If Adams makes it past the standing requirement, this case poses a confusing dilemma for states. On one hand, it seems reasonable for states to seek a balanced and ideologically diverse judiciary, especially given today’s polarized political climate. Delaware’s court system is one of the most respected in the U.S. given its influential and consistent jurisprudence in corporate law. Perhaps the existing political restraints on judicial appointments may be wise long-term policy. Still, Carney argues that this scheme is predicated on the notion that judges are “policymakers,” and it should be interesting to see the Justices’ reception to such an argument. Adams’ First Amendment concerns are salient, and the Court is likely to scrutinize whether a categorical disqualification based on his political affiliation is really the least restrictive means of ensuring a balanced judiciary. It would be quite bold to argue before the Court that because the President faces no political party restrictions in appointing federal judges that the federal judiciary is politically imbalanced. Adams and Carney each have powerful arguments, but they may have to tread lightly to make them at oral argument.