Delaware Defends Partisan Judiciary Mandate Before Supreme Court

October 5, 2020 Updated: October 5, 2020

Delaware told the Supreme Court that its law fixing the partisan makeup of that state’s courts should be upheld, on the first day of the court’s new term, which traditionally begins the first Monday in October.

Eight justices heard oral arguments telephonically in the case known as Carney v. Adams on Oct. 5.

Justice Ruth Bader Ginsburg died at 87 on Sept. 18, and President Donald Trump has nominated federal appeals court Judge Amy Coney Barrett to replace her.

Gov. John C. Carney, a Democrat who has held the post since January 2017, seeks to continue the state-mandated partisan cartelization of judicial offices in the First State. The Supreme Court agreed to hear the case after Carney lost in the 3rd Circuit Court of Appeals.

In an interesting historical parallel, the respondent, James R. Adams, is a disappointed judicial office-seeker asking for redress, similar to William Marbury of the 1803 Supreme Court case of Marbury v. Madison.

Adams claims he was unfairly prevented from applying for a judicial post in Delaware after he left the Democratic Party. In the 1803 case, Marbury sued after the incoming president, Thomas Jefferson, refused to allow Marbury to serve as justice of the peace, a commission given to Marbury by outgoing President John Adams as he was leaving office.

The Supreme Court refused to order the delivery of the document and established judicial review, the power of federal courts to declare legislative and executive acts unconstitutional.

David L. Finger, attorney for respondent James R. Adams, told the justices during oral arguments on Oct. 5 that Delaware’s constitution denies his client “the opportunity to apply for a judgeship because he does not belong to a major political party.”

“A party who suffers unequal treatment has standing to challenge a discriminatory exception that favors others,” Finger said.

“As long as judicial seats are allocated exclusively to political parties, unaffiliated lawyers are categorically excluded,” he said. If the court accepts the other side’s premises, “it’s the end of the idea of an independent judiciary.”

“Judicial engineering to avoid extremism in judging is not an interest that overcomes the First Amendment, and there’s no evidence that political discrimination has had any beneficial effect on the quality of justice in Delaware.”

Delaware’s lawyer, Michael W. McConnell, made the case for his client.

“A fundamental feature of our system of federalism … is that the states have broad leeway setting qualifications for their high-ranking officials, including their judges,” McConnell told the court.

“Delaware has used that freedom to create a system unique among the states of constitutionally mandated political balance for its judiciary, with the result that Delaware’s courts are widely regarded as the least partisan and most professional in the nation.”

The Delaware Constitution lays out partisan requirements. For example, that document states that “three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.”

This bipartisan representation mandate has existed since 1897 and is called the bare majority principle, in which the majority party holds one more seat on the bench than the minority party in cases of an odd number of seats, according to a Delaware Business Times summary. In 1951, the mandate was modified “to require applicants for the top three courts to be members of the major and minority parties, therefore excluding third-party, independent, and unaffiliated voters.”

Justice Clarence Thomas asked McConnell how far his client could take this major-party principle.

“Could Delaware, for example, pass a law requiring all judges to be members of one or the other of the major parties?”

“I don’t think so,” McConnell said. “I can’t see under any circumstances that that requirement would be reasonably appropriate.”

Carney said in court documents that the current system serves Delaware, a center of corporate governance used by Americans from across the nation, well and is well-regarded by the business and legal communities.

“The Delaware courts play a dominant role in American—and indeed global—corporate governance. Sixty percent of the Fortune 500 and more than half of the corporations listed on the New York Stock Exchange are incorporated in Delaware, in no small part due to the reputation—and reality—of the Delaware courts as objective, stable, and nonpartisan.”

For more than 120 years, the state constitution has mandated a politically balanced judiciary, he said.

Justice Brett Kavanaugh asked how the division of judgeships among the major political parties helps promote a lack of partisanship.

“Why can’t independents even better serve the goal of a balanced judiciary?” he said.

McConnell replied that the law was a check against the governor’s ability to pack the court and wasn’t so much about the applicants for judgeships themselves.

The major-party principle isn’t an “essential backstop,” but it is a “valuable one,” the lawyer said.