Supreme Court to Consider if States Can Choose Judges on Party Affiliation

December 8, 2019 Updated: December 8, 2019
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The Supreme Court agreed Dec. 6 to hear a challenge to a Delaware law invalidated by a lower federal court that regulates the partisan makeup of that state’s courts.

The Supreme Court granted a petition brought by Gov. John C. Carney, a Democrat who has held the post since January 2017. Carney is appealing a loss at the 3rd Circuit Court of Appeals, which struck down the state law on April 10.

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.”

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, Carney said.

“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, the governor stated in his petition to the court.

Current law provides that no more than 50 percent of the judges on the Supreme Court, Superior Court, “or those courts together with the Court of Chancery, may be affiliated with one political party,” with the other seats reserved for members of the other major political party.

In its decision, the 3rd Circuit agreed Delaware’s courts function well but referenced Supreme Court rulings that state that politics shouldn’t factor in the hiring and firing of most government employees. Of course, politics can play a role in “policymaking positions,” where a governor has a right to hire those who support his policies, the circuit court stated.

Although some federal courts have deemed judges to be “policymakers,” the 3rd Circuit disagreed, writing: “While judges clearly play a significant role in Delaware, that does not make the judicial position a political role tied to the will of the governor and his political preferences.”

James R. Adams, a retired attorney who quit the Democratic Party, challenged the law because it precludes people like him from serving on the courts. Adams argues the law, which he says is “unique to Delaware,” violates the First Amendment.

“No other State excludes minority parties from appointment as judges,” Adams states in a brief filed with the Supreme Court. “No other State requires political balance on their courts.”

“Such a system assumes, without foundation, that Republicans and Democrats are monolithic in their judicial views and that their political views will control their decision-making,” Adams states. “Worse, it reinforces the fears of the public that judges will decide cases based on political affiliation.”

In the brief, Adams quotes Justice Neil Gorsuch from his Supreme Court confirmation hearing in 2017: “I am heartened by the support I have received from people who recognize that there is no such thing as a Republican judge or a Democratic judge. We just have judges in this country.”

Adams gave evidence in the case, saying attorneys not affiliated with a major political party are effectively barred from working as judges in Delaware’s highest courts, according to The New York Times.

“If Delaware had a constitution that said, you know, a certain race or religion or gender was eliminated from being judges, everyone would say that’s obviously discrimination,” he said.

“It’s kind of like those old discrimination cases about whether you’re in the front of the bus or the back of the bus,” Adams said. “The Delaware Constitution has decided that sometimes independents are allowed in the back of the bus and sometimes, they can’t get on the bus.”