Delaware’s Attempts to Provide Political Balance in its Judiciary Leave One Independent Feeling Left Out

In the United States Supreme Court

Argument	October 5, 2020
Decision	December 10, 2020
Petitioner Brief	John C. Carney, Governor of Delaware
Respondent Brief	James R. Adams
Opinion Below	Third Circuit Court of Appeals

Argument Analysis

August 25, 2020

In the late 1800s, Delaware had a problem with political imbalance in the state courts. Delaware high court positions were chosen by the governor of the state, who often chose judges and justices exclusively from his political party. 

The Apolitical Judiciary

Courts are supposed to be apolitical. In many states, like in Delaware, and in the federal government, judges are not elected. Not requiring them to pursue election or reelection allows them to escape the desire to please those who support their campaigns. Judges are meant to read and interpret the law, not to have policy preferences. 

Delaware’s Political Balance Provisions

Delaware resolved the issue of political imbalance on the courts by placing requirements on the party affiliations of members of certain state high courts. In the Delaware Supreme Court, for example, out of five total justices, three of them must come from one major political party and the other two must come from the other major political party. The Delaware Superior Court has a similar rule, limiting judges of one major party to a bare majority of the seats and reserving the rest for the other major party. For two other courts, the law limits the judges of one party to a “bare majority” but doesn’t necessarily reserve the other spots to the other “major party.”

James Adams, the Independent

James Adams is a Delaware lawyer who has worked in the Delaware government in several positions. At the time, Adams was a registered Democrat. 

In 2017 Adams decided that he wanted to be a judge. Adams describes in his brief to the Court that the Democratic Party wasn’t doing it for him anymore, and he changed to register as “Unaffiliated.” 

There were vacancies on the Delaware Supreme Court and on the Superior Court at the time, but those positions were reserved for Republicans, so Adams was not eligible. Moreover, as an Independent, Adams wouldn’t have a shot even if other positions on those courts opened up. 

There are, however, two courts that only have “bare majority” restrictions (and not “major party” restrictions). Adams might have had a chance as an Independent applying on either of those two courts. 

Adams Claims Violation of First Amendment Right of Association

Adams sued in federal court, arguing the Delaware political balance provisions violate his First Amendment right to freedom of association. He claims the law pressures him to choose between pursuing a judgeship and expressing his sincere political preferences (desiring not to affiliate with either major political party).

Rulings in the Courts Below

The district court ruled Adams had valid claims in challenging both the “major party” requirements and the “bare majority” requirements. The judge ruled the entire set of limitations on the judicial seats unconstitutional because she determined that political affiliation is not necessary to effective judicial decision-making. 

Delaware appealed, and got the Third Circuit appellate court to agree that Adams did not have a claim regarding the provisions that included only a “bare majority” restriction. The Third Circuit affirmed the lower court (in favor of Adams) regarding the restrictions that left no space at all for independents. Those are the restrictions with “major party” provisions, meaning all seats on applicable courts were restricted to people of the two major political parties.

The Elrod/Branti Analysis

In ruling the partisan balance provisions with “major party” restrictions unconstitutional, the Third Circuit relied on a pair of cases, Elrod v. Burns (1976) and Branti v. Finkel (1980). 

In Elrod and Branti, the Supreme Court evaluated when a government position may be conditioned on political party affiliation without violating the First Amendment freedom of association.

The Third Circuit recounted the rationale in Elrod:

In Elrod v. Burns , Justice Brennan, writing for the plurality, recognized that the practice of patronage dismissals—dismissing a civil servant because his political affiliation differed from the political party in power—is “inimical to the process which undergirds our system of government and is at war with the deeper traditions of democracy embodied in the First Amendment.” He explained that to justify terminating a public employee based on political allegiance, the government must show that the practice “further[s] some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.”

Elrod restricted dismissals based on party affiliation for government positions to those positions involving policymaking. Several years later, in Branti, the Court further clarified when a court can allow a government position to be conditioned on party affiliation:

The ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

Given these precedents, the Third Circuit analyzed whether a judicial role is either a policymaking role or whether party affiliation is an “appropriate requirement” for performing the role of a judge. The Third Circuit determined that neither characterization applies. Judges are interpreters of the law; not law-makers. Their duties do not depend on their policy interests, and their policy interests are actually not appropriate factors in the work of judges.

The Supreme Court Appeal

Delaware appealed the Third Circuit ruling, arguing that (a) Adams doesn’t actually have standing to challenge even the provisions with the “major party” restriction; (b) the Court failed to recognize that party affiliation may be an appropriate requirement for a judge; and (c) the Court improperly scrutinized whether the political balance provisions were narrowly tailored to serve the government’s interest in political balance.

Delaware’s (Carney’s) Arguments

Regarding standing, Delaware argues Adams was never that invested in gaining a role on the judiciary. The facts show that Adams was only interested in changing his party affiliation so that he could challenge the law. Thus we don’t know whether Adams might apply for a judicial position in the future, and Adams can’t argue that he was planning to in order to get standing. His past actions certainly don’t evidence a genuine intention.

As an additional argument, Delaware points out that the Constitution guarantees states have control over the qualifications of high-level government officers, judges included, and the state’s right to create bipartisan balance in its courts should prevail in the case. 

Regarding whether party affiliation can be an appropriate requirement for a judge, Delaware argues the Third Circuit did not properly evaluate the role that party affiliation can play in a judge’s work. Although judges are not policy-makers, Delaware says, taking account of their political opinions can help ensure bipartisan decision-making on the court. Further, judges do make common law, which is different than legislative or executive lawmaking but nevertheless “policy-making” of a certain type. 

Lastly, Delaware argues that the Third Circuit too quickly rejected the state’s arguments that, even admitting the law places a restriction on the right of association, the law is passable because it is narrowly tailored to the “vital state interest” of “public confidence in judicial integrity.”

Adams’ Arguments

Regarding standing, Adams argues he is, in fact, harmed by the political imbalance provisions, which prevent him from gaining a position because he is neither a Democrat or a Republican. As Adams stated in a deposition, he would have applied for a judicial post if they were available to him as an Independent. Adams argues he does not need to show that he had a good chance of being selected as judge, “only that there is a government-imposed barrier that excludes him from a judgeship based on his political affiliation.”

Adams supports the Third Circuit’s application of the Elrod and Branti analyses to his case. As summarized in his brief:

Political affiliation is not only not necessary for the work of a judge, it also is inconsistent with the role of a judge. Judges are required to put aside their political views and decide cases based on neutral principles. Any “policy” judges make are in furtherance of the cases before them, and not in furtherance of partisan political interests. Courtroom judges are not supposed to protect the interests of their party, like election judges do.  

Adams argues that the political balance provisions are not “narrowly tailored” to serve a compelling state interest. If the state is going for political balance and judicial integrity, there are other ways to get there. In fact, Delaware’s rules ensure a majority of judges come from one political party, so the state is giving the majority party a chance to implement its desires. There are other rules of judicial behavior that act to keep the court from being too political, Adams notes. Thus, he argues, the political balance provisions he challenges are not narrowly tailored to promote partisan balance. There are many other ways to serve the same goal without infringing on First Amendment rights.  

Severability

A last issue which is relevant to the parties is whether the “major party” provision can be “severed,” or separated from the “bare majority” provisions.

For some courts, both restrictions are applicable. And for others, only the “bare majority” restriction is applicable. The Third Circuit ruled that the bare majority provisions don’t — alone — violate the First Amendment. However, does that mean a court can just strike the “major party” requirement from those provisions that have both? Or if the provision has both requirements, the whole provision must fall?

Delaware argues the “bare majority” aspect of one provision can remain even if the “major party” aspect of the provision must fall. Adams argues to the contrary, which is what the Third Circuit ruled. When Delaware determined that the state Supreme Court, Superior Court and Chancery Courts should have both restrictions, it struck a certain balance. Without one aspect of that balance (the “major party” restriction), we can’t be sure the lawmakers would have wanted the “bare majority” provision alone. Thus, the entire political balance provisions regarding the Supreme Court, Superior Court and Chancery Court should be stricken.

The Supreme Court will hear arguments on October 5, 2020.

Decision Analysis

December 10, 2020

On December 10, 2020, the Supreme Court ruled in Carney v. Adams, dismissing the case for a lack of standing. As a result, the Court did not address the Constitutional question presented in the case.

Case Background

John Adams, a political Independent, sued the state of Delaware, arguing the state’s laws restricting judicial membership based on political affiliation violated the First Amendment. The First Amendment gives everyone the right to associate or not to associate with groups of their choosing. Adams argued that if he wanted to pursue a judgeship on certain Delaware benches, his lack of political affiliation would deprive him of the opportunity. Thus, he argued, Delaware’s rules violate the Constitution.

The Supreme Court didn’t get that far, though. The Justices didn’t let Adams in the door to challenge the Delaware laws. Rather, the Court ruled unanimously that Adams did not have “standing” to bring the case. 

Standing Background

Article III of the Constitution requires anyone who brings a suit in federal court to have a “concrete and particularized” injury, which is “actual and imminent.” Additionally, the litigant may not be seeking to remedy a “generalized grievance.” The issue must be specifically relevant to the individual.

In regards to Adams’ case, he would have to show that he was “likely to apply to become a judge in the reasonably foreseeable future, if he were not barred because of his political affiliation.”

The Supreme Court Ruling

The Supreme Court ruled Adams did not have the right type of grievance because he could not show that he was “able and ready” to apply to become a judge. 

According to the record, the only statements suggesting Adam’s intention to apply to become a judge were that he “wanted to be” a judge and that he “would apply to be” a judge on any of Delaware’s five benches. However, Adams’ statements were not coupled with any action. Adams did not seek out which benches had openings; he did not make any other preparations to apply to become a judge.

The Court noted that Adams’ grievance seemed theoretical, based on the record. It wasn’t that Adams’ actually was ready to apply to become a judge; he just thought it would be nice if he could apply one day. Thus, the Court said, Adams’ grievance was generalized, which is not adequate for Article III standing. 

Federal courts do not issue advisory opinions; they only take “live” cases in need of resolution. Because the record indicates that Adams was taking only theoretical issue with the Delaware rule, the Court dismissed his case.