(1) Does a political independent have standing to challenge a provision of the Delaware Constitution requiring that no more than a bare majority of judges on the state’s highest courts may belong to the same political party (the “bare majority provision”) and that other judges on those courts must belong to the other major party (the “major party provision”); (2) does the major party provision violate potential judicial appointees’ First Amendment rights of association; and (3) is the bare majority provision severable from the major party provision such that the bare majority provision can survive a challenge to the major party provision?
This case asks the Supreme Court to decide the constitutionality of two provisions of the Delaware Constitution which require that the two major political parties be represented as evenly as possible on Delaware’s highest courts. John Carney, the Governor of Delaware, argues that James R. Adams, who challenges the Delaware Constitution, lacks Article III standing to assert these claims because Adams’ has suffered only a hypothetical injury and that injury was self-inflicted through a personal choice to change political affiliation. Governor Carney additionally contends that the state constitutional provisions are consistent with the First Amendment because judges fall under a policymaking exception to the First Amendment’s prohibition on using political affiliation as job criterion, and because the constitutional provisions are the only viable way to advance the state’s compelling interest in public confidence in the judiciary’s neutrality. Finally, Governor Carney asserts that in the event that the Court strikes down the major party provision, the bare majority provision of the Delaware Constitution is severable and thus should remain intact. Adams responds that he has standing to assert these claims by virtue of Delaware’s denial of any potential judgeship for him based on his political affiliation and the chilling effect that he experiences on his associative freedoms due to the constitutional provisions. Next, Adams contends that the provisions violate the First Amendment and do not fall within the exception for using political association as a job criterion for policymakers; therefore, he argues, the Court should apply strict scrutiny in its review of this alleged First Amendment violation. Finally, Adams asserts that the bare majority provision is not severable from the major party provision and therefore, if one is invalidated, both must be struck down. The Supreme Court’s decision in this case will affect state interests in creating a politically neutral judiciary and the methods states can use to achieve this goal, as well as demonstrate the merits and burdens of associating political affiliations with judicial positions.
Questions as Framed for the Court by the Parties
(1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts; and (3) whether the respondent, James Adams, has demonstrated Article III standing.
James R. Adams is a resident of Delaware and a member of the Delaware State Bar. Adams v. Governor of Delaware at 169. For years, Adams desired a position as a Delaware state judge. Id. In 2009, he applied to be a Family Court Commissioner, but was not selected. Id. at 172. In 2014, Adams contemplated applying to serve on the Delaware Supreme Court or Superior Court, but he did not apply because he was registered as a Democrat, and the positions were open only to Republicans. Id. Adams retired in 2015, but in 2017 he reactivated his Delaware State Bar status to continue searching for potential judgeships. Id. In 2017, Adams also changed his party affiliation to Independent, to express, in his mind, his disdain toward the moderate-leaning Democratic Party. Id.
Delaware’s state constitution contains a provision that effectively requires Democrats or Republicans to fill most state judiciary positions—the Delaware Constitution places a cap on the number of judges who can be affiliated with the majority political party (the “bare majority provision”) and requires that members of the other major political party fill the other judgeships (the “major party provision”). Id. at 171. Thus, Adams’ change in party affiliation also led him to believe that he would not qualify for a judgeship due to his political affiliation. Id. at 173. Therefore, despite his longstanding interest, Adams did not apply for a vacant judicial position, at least two of which called for Republican candidates. Id.
In February 2017, Adams brought suit against Delaware Governor John Carney in the United States District Court for the District of Delaware (the “District Court”) to challenge the bare majority and major party provisions of the Delaware Constitution. Id. at 169. At the District Court level, both Adams and Governor Carney moved for summary judgment. Id. at 172. Governor Carney argued that Adams did not have standing to sue. Id. Adams claimed that the Delaware Constitution violates his First Amendment freedom of association right. Id. at 172–73. The District Court concluded that Adams did not have standing to challenge the bare majority provision, but did have standing to challenge the major party provision of the Delaware Constitution: the court determined that, despite Adams’ failure to actually apply for a judicial position, doing so would have been futile. Id. at 173. Furthermore, the District Court sided with Adams on the merits, determining that Article IV, Section 3 of the state constitution, containing the two challenged provisions, restricted candidates’ access to a government position based on their political affiliation and was therefore unconstitutional. Id. The District Court granted summary judgment in Adams’ favor. Id. at 169.
Governor Carney appealed this decision to the United States Court of Appeals for the Third Circuit (the “Third Circuit”). Id. at 173. There, Adams again argued that Article IV, Section 3 of the Delaware Constitution limits service on state courts to members of the two main political parties. Id. at 169. Adams asserted that this is prohibited under prior United States Supreme Court cases Elrod v. Burns and Branti v. Finkel, as an unconstitutional limit on judicial candidates’ freedom of association. Id. In response, Governor Carney argued that judges are not political candidates, but rather are policymakers, and that, therefore, no constitutional provisions inhibit hiring requirements. Id. The Third Circuit, after affirming the District Court’s standing decision, held that the section of the Delaware Constitution that restricts candidates’ ability to apply for judicial positions based on political affiliation constitutes a First Amendment violation and is thus unconstitutional. Id. at 176, 183. Additionally, the Third Circuit determined that state judges are not policymakers, and, therefore, the policymaker exception does not apply. Id. at 178, 180.
Governor Carney appealed the Third Circuit’s decision and, on December 6, 2019, the Supreme Court granted certiorari. Orders and Proceedings, 19-309. The Supreme Court directed that, in addition to preparing arguments on the constitutional questions raised on freedom of association, the parties should also prepare arguments on whether Adams has Article III standing to raise his claim. Id.
ADAMS’ ARTICLE III STANDING AS AN INDEPENDENT
Petitioner, Governor Carney, argues that Adams does not have standing under Article III of the United States Constitution to assert a challenge to the Delaware Constitution because Adams has failed to establish an “injury-in-fact” that is “concrete and particularized” for each challenged provision, requirements for Article III standing. Brief for Petitioner, John Carney at 19–20. First, Governor Carney notes that the bare majority provision could injure only members of major political parties by creating a supermajority in the state courts, and because Adams does not belong to either major party, that provision cannot injure him. Id. at 20. Next, Governor Carney asserts that to demonstrate that the major party provision injured him, Adams must establish (1) he had genuine, active plans to apply for judgeships, (2) the constitutional provision prevented him from equal evaluation for these positions, and (3) without the provision, he had a reasonable probability of securing a judgeship. Id. at 20–21. Governor Carney contends that Adams failed to establish all three of these criteria: first, Governor Carney states that Adams’ general interest in one day applying to the courts is too hypothetical to sustain an actual injury. Id. at 21. Second, contrary to Adams’ position in the lower courts, Governor Carney continues, positions were open to Democrats in 2014 for which Adams could have applied, and therefore, the major party provision never cost him an opportunity for a judgeship. Id. Governor Carney posits, moreover, that because Adams’ status as an Independent would not bar him from serving on, for example, the Family Court, Adams could fulfill his general interest in serving as a judge notwithstanding the major party provision, thus undercutting his alleged injury. Id. at 22. Finally, Adams, Governor Carney emphasizes, does not have a reasonable probability of becoming a judge because, at most, the record reflects that he “meets the minimum qualifications” of judgeships. Id. at 22. Furthermore, Carney argues, any harm Adams sustained was self-inflicted by his decision to abandon his Democratic affiliation days before suing. Id. at 23.
Respondent, Adams, counters that he has Article III standing to challenge both provisions of the Delaware Constitution because he has experienced injury sufficient to satisfy the requirements of Article III standing. Brief for Respondent, James R. Adams at 12. Adams argues that the major party provision injures him by categorically preventing him from ever serving as a judge and the bare majority provision injures him by limiting his potential judgeships whenever a bare majority exists in a court. Id. at 13. Consequently, Adams asserts, the constitutional provisions cause him to experience a chilling effect on his political association; an injury that he believes gives rise to standing. Id. at 15. Responding to Governor Carney, moreover, Adams contends that judgeships available to him in 2014 do not undermine his alleged injury because past opportunities are irrelevant to the obstacles that he currently faces. Id. at 17–18. Adams further maintains that his current interest in judgeships renders his injury imminent, rather than hypothetical. See id. at 16. Although he has not yet applied for a judgeship, Adams explains, Article III standing doctrine does not require him to make a futile attempt. Id. Moreover, Adams meets the “reasonable possibility” test, he argues, because Delaware law requires only that judgeship candidates be legally trained, Delaware citizens. Id. at 15. For standing, Adams continues, he does not need to assert that he realistically could have achieved a judgeship absent the constitutional provisions, but rather showing that the government has rendered it more difficult to obtain a benefit for members of one group than for members of another is sufficient. Id. at 14. Finally, Adams maintains that far from being self-serving, his party change reflects sincere disagreements with the Democratic party, strong enough to expose himself to Delaware’s allegedly unconstitutional restrictions on his employment opportunities. Id. at 19–20.
THE MAJOR PARTY PROVISION’S CONSTITUTIONALITY UNDER THE FIRST AMENDMENT
Governor Carney maintains that the major party provision is constitutional because it is consistent with precedent in Elrod v. Burns and Branti v. Finkel, which staked out an exception to the First Amendment’s prohibition on political affiliation considerations when the position at issue is one of policymaking. Brief for Petitioner at 28. State judges, he argues, fall under this exception because they exercise discretion in performing public functions and are not akin to the low-level government positions for which political affiliation is irrelevant and the First Amendment protects. Id. at 28–29. In support of this assertion, Governor Carney explains that judges make common law, administer the judicial system, regulate lawyers, and perform other functions that constitute policymaking. Id. at 31–33. The Third Circuit’s determination that judges are not policymakers, he continues, subverts Elrod’s rationale of political neutrality in staffing government positions because the provision that the Third Circuit struck down is designed to insulate the judiciary from partisan influence. Id. at 30.
Moreover, Governor Carney asserts that Supreme Court precedent requires a less demanding standard of review for state laws determining state government than the strict scrutiny review that the Third Circuit applied. Id. at 34–35. He maintains that in requiring him to show that Delaware could not achieve judicial political neutrality through less restrictive means than the major party provision, the Third Circuit contravened this precedent. Id. at 36–37. Instead, Governor Carney contends, federal courts should be more deferential to states in this context, and the proper question the Supreme Court should consider is whether political affiliation is “appropriate” to consider in filling state judgeships. Id. at 37. Furthermore, even if heightened-scrutiny review applies, Governor Carney argues, the major party provision satisfies that standard. Id. Under strict scrutiny, he notes, a challenged state legal provision must be narrowly tailored to a compelling state interest. Id. Governor Carney contends that the major party provision furthers Delaware’s compelling interest in maintaining the state judiciary’s political neutrality and the public’s confidence in the judiciary. Id. at 38. As evidence that the provision is narrowly tailored, Governor Carney points to research showing that mixed-ideology panels produce more balanced results than same-ideology panels. Id. at 40–41. Furthermore, he argues, the major party provision is the only viable means of maintaining Delaware’s balanced judiciary because without this provision, the bare majority provision alone would allow partisan governors to appoint non-partisan, but partisan-leaning judges to augment the bare majority of the governor’s party in the judiciary, thus defeating the judiciary’s aim of representing multiple ideologies. Id. at 42. Adams himself illustrates this danger, Governor Carney posits, because for Adams, Delaware Democrats were too “moderate,” and Adams’ appointment on a court, therefore, would ideologically skew the court to the left despite him not identifying as a Democrat. Id.
Adams replies that the major party provision is unconstitutional because the First Amendment prohibits selecting judges based on political affiliation, since such a scheme restricts freedom of association in a way that does not bear a rational relationship to a judge’s performance. Brief for Respondent at 22. He further maintains that Elrod’s and Branti’s First Amendment protections do not apply only to low-level government employees but extend to anyone—including judges—who are politically independent from the party in power. Id. at 23–25. Under these cases, Adams argues, judges do not fall within the policymaker exception to First Amendment protections, which applies only to government positions whose functions can only be performed effectively if the appointee shares the appointing power’s political ideology. Id. at 28. To the contrary, Adams contends, judges are supposed to be politically independent—they neutrally apply laws to facts regardless of their political affiliation—and politicized appointments could, in fact, sow corruption, not neutrality, in the judiciary. Id. at 26, 28–30.
Furthermore, Adams argues, the Court should apply strict scrutiny in its review of the state constitutional provisions because the standard of review in First Amendment cases is relaxed only when a restriction on associative rights is not severe, but here, the restriction on association rights is severe. Id. at 36. Additionally, Adams explains that federalism concerns, like the ones Governor Carney expresses, cannot override the standard of review applicable when the First Amendment is at play. Id. The major party and bare majority provisions fail strict scrutiny, Adams asserts, because they are not narrowly tailored to Delaware’s interest in a balanced judiciary. Id. at 37. Other states’ judiciaries fare well without such provisions, Adams contends, and thus, no evidence shows that Delaware’s provisions are necessary to enhance its judiciary’s integrity. Id. at 38–39. Adams, moreover, contests the argument that the challenged provisions even create judicial balance in the Delaware courts. Id. at 40. The Delaware Supreme Court, he explains, sits either with all five justices together or in panels of three, which allows for 3-2, 2-1, and 3-0 majorities in any given case. Id. Thus, Adams argues, the majority party can usually have its way regardless of the minority party’s representation on the court as a whole. Id. Adams further maintains that governors can manipulate the system as it stands by appointing, for example, centrist or right-leaning Democrats to fulfill the provision’s partisan standards, and nothing prevents a prospective appointee from switching parties to become eligible for a judgeship. Id. at 41. Finally, Adams argues that Governor Carney fails to show a lack of less restrictive alternatives to promoting Delaware’s interest in judicial neutrality because Codes of Judicial Conduct, existing term limits, and Delaware’s economic interest in maintaining a strong judiciary already promote this interest. Id. at 43–45. For instance, Delaware could, Adams suggests, promote a more centrist bench by requiring a supermajority to confirm judges, or ask about judicial ideology directly on judge applications. Id. at 45–46.
SEVERING THE MAJOR PARTY PROVISION FROM THE BARE MAJORITY PROVISION
Governor Carney contends that the Third Circuit erred when it determined that the bare majority provision is not severable from the major party provision. Brief for Petitioner at 47. First, Governor Carney explains that Adams’ challenge to the major party provision does not endanger the bare majority provision because Adams lacks standing to challenge the bare majority provision, and the Court has never addressed whether an implied exception to standing for severability exists. Id. at 47–48. Although Governor Carney concedes some ambiguity in the severability case law, he contends that in cases involving severability in which the Court did not first perform a standing inquiry, the parties challenging the laws had standing as to the non-severable portions of the laws. Id. at 49, n. 6. Thus, Governor Carney concludes, here the Court should not even reach the severability question because Adams lacks standing as to the bare majority provision, and thus, the Court should leave the bare majority provision undisturbed. Id. at 49. Even if the Court reaches severability, however, Governor Carney argues that the bare majority provision is severable from the major party provision and, therefore, survives the constitutional challenge even if the Court strikes down the major party provision. Id. at 50, 53. The bare majority provision is severable, he posits, because it stood alone for fifty-four years before the state enacted the major party provision and because no evidence indicates that Delaware Constitution’s framers intended an all-or-nothing approach to these provisions. Id. at 51–52.
Adams responds that Governor Carney waived any argument on severability by not addressing the issue in lower courts, and even if he did not waive the argument, the bare majority provision is not severable from the major party provision. Brief for Respondent at 50–51. The two are not severable, Adams continues, because the judiciary’s political makeup and the balance of that makeup are intertwined concepts and have been since the first of the provisions was passed. Id. at 51. Adams further contends that because the bare majority provision does not achieve its aim of balancing the judiciary without the major party provision, the bare majority provision cannot survive if the major party provision is struck down. See id. at 52. Moreover, Adams argues, the legislature likely considered both provisions as interconnected because the legislature incorporated the major party provision into the text of the bare majority provision as an amendment to the Delaware Constitution, rather than placing the major party provision in a separate paragraph. Id. Finally, in response to the standing point, Adams maintains that he has standing to assert his claims and that standing has no bearing on severability, as the Court only considers severability after resolving standing issues. Id. at 52–53.
DO THE DELAWARE CONSTITUTIONAL PROVISIONS HELP OR HINDER STATE INTERESTS?
The Brennan Center for Justice at NYU School of Law (“Brennan Center”), in support of Governor Carney, argues that the Delaware Constitution furthers important state interests beyond even what the Third Circuit considered. Brief of Amicus Curiae Brennan Center for Justice at NYU School of Law, in Support of Petitioner at 11. The Brennan Center contends that Delaware’s provisions demonstrate that a state’s way of structuring its judiciary is particular and unique. Id. State and Local Government Associations, in support of Governor Carney, assert that a state government’s determination that party balancing is useful in a particular context reflects a sovereign’s determination that deserves respect from the federal government. Brief of Amici Curiae State and Local Government Associations, in Support of Petitioner at 27. The Court, the Brennan Center maintains, should consider this important state interest that the Delaware Constitution advances, along with Delaware’s significant interests in increasing public confidence in the judicial system’s fairness and preventing one political party from gaining full control of the judiciary. Brief of Brennan Center at 11–12.
In contrast, the Cato Institute, in support of Adams, argues that the Delaware Constitution may actually undermine the state interest of creating a politically balanced judiciary in which the public can be confident. Brief of Amicus Curiae Cato Institute, in Support of Respondent at 12. The Cato Institute contends that explicitly labeling judicial positions as having to be filed by either Democrats or Republicans indicates to the public that the Delaware government considers judicial decisions to be inherently tied to party affiliation, thus undermining public perception of a neutral judiciary. Id. Additionally, the Cato Institute asserts that party restriction may influence judicial decision-making, by compelling judges to represent the political party to which they belong rather than impartially make decisions. Id. The Cato Institute further maintains that excluding Independents, who are less ideologically extreme, from state judge positions contradicts the state goal of judicial political neutrality. Id. Finally, the Cato Institute points out that Delaware’s judiciary structure in practice only benefits from political balancing in the state Supreme Court where judges make judicial decisions in a group capacity, rather than individually. Id. at 13.
THE BENEFITS AND BURDENS OF REQUIRING MAJOR PARTY AFFILIATION AMONG JUDGES
The Delaware State Bar Association (the “Association”), in support of Governor Carney, argues that the government should consider judicial candidates’ political affiliations when filling judicial vacancies because judges make policy that aligns with their political perspectives. Brief of Amicus Curiae Delaware State Bar Association, in Support of Petitioner at 5. Additionally, Professors Brian D. Feinstein and Daniel J. Hemel, in support of Governor Carney, emphasize that diverse political viewpoints, such as those created by Delaware’s two-party requirement, prevent extreme judicial decisions and promote reasonableness. Brief of Amici Curiae Professors Brian D. Feinstein and Daniel J. Hemel, in Support of Petitioner at 8. The Former Chief Justices of the Delaware Supreme Court (the “Former Chief Justices”), in support of Governor Carney, agree, and assert that the Delaware Constitution’s two-party requirement guarantees that no one political party overtakes the judiciary. Brief of Amici Curiae Former Chief Justices of the Delaware Supreme Court, in Support of Petitioner at 13–14. The Former Chief Justices believe that the provisions remove party politics from the judicial selection process, because both major parties are assured that they will have members of the judiciary with their political affiliation. Id. at 14. The Former Chief Justices contend that this “depoliticized” element to the Delaware judiciary draws “quality lawyers” to fill the vacancies. Id.
Conversely, the Cato Institute, in support of Adams, believes that Delaware’s two-party requirement imposes a burden upon Independent judicial candidates, as well as judicial candidates who are affiliated with other third-party political groups. Brief of Cato Institute at 3. For example, the Libertarian National Committee, in support of Adams, argues that Delaware’s two-party requirement categorically excludes Libertarians from state judicial positions solely due to their political ideology. Brief of Amicus Curiae Libertarian National Committee, in Support of Respondent at 6–8. To that end, the Cato Institute asserts, the requirement may compel Independents and members of other third parties to betray their political beliefs for an opportunity to serve as a Delaware judge. Brief of Cato Institute at 5. Further, the Cato Institute argues that Delaware’s two-party provisions discourage judges from leaving their political parties while they are still serving out their judicial terms, even if their political ideologies change while they are serving. Id. at 6.
- Michael C. Dorf, If There Are No “Obama Judges” or “Trump Judges,” Does the Constitution Permit Delaware to Require Partisan Balance on its Courts? The Supreme Court Will Decide, Verdict (December 11, 2019).
- Debra Cassens Weiss, Supreme Court Agrees to Hear Challenge to Delaware Requirement for Political Balance on Top Courts, ABA Journal (December 9, 2019).
- Henry Gass, What’s the Best Way to Ensure Impartial Judges? Delaware Prompts a Rethink, Christian Science Monitor (November 19, 2019).
- Adam Liptak, Supreme Court Says Judges are Above Politics. It May Hear a Case Testing That View, New York Times (September 16, 2019).