WASHINGTON, D.C. – The U.S. Supreme Court agreed Dec. 6 to hear the case on whether Delaware’s requirement of political balance on state courts is constitutional.
The justices’ acceptance of Gov. John Carney’s petition for a writ of certiorari, or a ruling on a lower court’s decision, means that the nation’s highest court will weigh in on what degree partisanship has in deciding judicial appointments. Specifically, the court will likely determine whether judges are “policymakers,” an important niche carved out in a 1976 Supreme Court ruling for high-level government officials who are able to be appointed or dismissed due to political party affiliation.
The case will be closely watched by corporate America, as it impacts both Delaware’s Supreme Court and Chancery Court, where litigation is heard for more than a million incorporated businesses. Delaware’s status as a national corporate nexus has been an integral part to the case’s arguments as well.
Delaware has required that the state’s courts have a balance of Democrats and Republicans since 1897, with the majority party holding one more seat on the bench than the minority party in cases of an odd number of seats. In 1951, as part of a wider series of structural changes to the Delaware judiciary, the provision was modified to exclude third party and unaffiliated voters from applying to serve as judges on the state’s Supreme Court, Superior Court, and Chancery Court.
The plaintiff in the case is James Adams, a former Delaware Department of Justice lawyer who wanted to seek a judicial appointee but is currently a registered Independent, disqualifying him from the bench under the state’s Constitution. While Adams was a registered Democrat, he changed his party affiliation in 2017 because of his frustration “with the centrism of the Democratic Party in Delaware” and now describes himself as an independent in the mold of Vermont Sen. Bernie Sanders.
He is arguing under First Amendment grounds that state’s requirement is unconstitutional due to previous Supreme Court rulings that found a judicial candidate should be free to associate, or not to associate, with the political party of his or her choice.
In his defense, Carney argues that because judges are policymakers, there are no constitutional restraints on his hiring decisions, and he should be free to choose candidates based on whether they belong to one of the two major political parties.
The case, Carney v. Adams, was last heard by a panel of the U.S. Court of Appeals for the Third Circuit, which struck down the law as unconstitutional, writing, “judges are not policymakers because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests.”
Two other cases, one each in the Sixth and Seventh Circuits, have concluded otherwise on the question of “policymaking” for state judges, but the judges of the Third Circuit dissented, calling those rulings “unpersuasive.” In doing so, the Third Circuit created a “circuit split” in decisions and raised the stakes for a ruling by the U.S. Supreme Court.
In his appeal, Carney stressed that the lower court ruling violates the state’s sovereign Tenth Amendment right to determine the qualifications of their most important governmental officials — a right “that lies at the heart of representative government.” The petition also notes that if the lower court’s decision were correct, it would cast doubt on dozens of federal and state agencies whose commissioners must, by law, be bipartisan.
“Delaware’s judiciary has a longstanding reputation as objective, stable, and nonpartisan. That is largely thanks to the wisdom of those who wrote the Delaware Constitution. They understood the importance of keeping partisan politics out of Delaware’s courts, which are widely respected nationwide for their excellence and garner tremendous respect from our citizens and members of our bar,” he said in a statement announcing the Supreme Court’s decision. “I believe it’s more important than ever to protect Delaware’s appointment process from the partisan infighting that has come to characterize the federal appointment process. We look forward to presenting our case to the court.”
One thing is certain in the case headed to the highest court though: the governor will be supported by his predecessors and several former Delaware Supreme Court justices in his petition.
Former Govs. Mike Castle, Dale Wolf, Thomas Carper, Ruth Ann Minner and Jack Markell filed a joint amicus brief with the court, supporting their successor’s position and arguing that Delaware’s leading position in the nation’s incorporations means that its judges are uniquely “policymakers.”
Likewise, former Delaware Supreme Court Chief Justices Myron Steele and Norman Veasey submitted an amicus brief arguing that the state’s requirements have created a renowned judiciary and that undoing the requirements may have far-reaching effects.
Carney is represented by Stanford University professor and former judge Michael McConnell; former Delaware Supreme Court Justice Randy Holland; Steffen Johnson and Brian Levy, all of Wilson Sonsini Goodrich & Rosati P.C.; and by David McBride, Martin Lessner, and Pilar Kraman of Young Conaway Stargatt & Taylor LLP.
Adams is represented by David L. Finger, of Finger & Slanina LLC.
The Supreme Court will hear the case in 2020, with a ruling expected by June when the court wraps up its year.
By Jacob Owens