Argument analysis: Justices skeptical of challenge to Delaware rules on bipartisanship in judiciary

The Supreme Court heard the first oral argument of its new term on Monday morning. The scene was starkly different from the first Monday in October last year: Rather than meeting in the courtroom, the justices gathered by telephone because of the COVID-19 pandemic. And with the death of Justice Ruth Bader Ginsburg on Sept. 18, there were only eight justices participating in the oral argument in Carney v. Adams. The case is a challenge to a provision in the Delaware constitution that seeks to ensure bipartisanship in the state’s courts by, among other things, dividing the five seats on the Delaware Supreme Court (as well as two other courts) between Democrats and Republicans, with three seats going to one party and two to the other. After over an hour of debate, it seemed possible that the justices would uphold the provision – assuming that they reach the merits of the case at all.

The challenger in the case is John Adams, a Delaware lawyer who was a registered Democrat until 2017, when he changed his party affiliation to Independent. Adams says that he wants to serve as a judge but that the state’s constitution prevents him from doing so. One provision of the constitution directs that no more than a “bare majority” of the judges on the state’s five main courts can be affiliated with any one political party. A related provision, which is known as the “major party” provision and is the one challenged in Monday’s case, divides the seats on the state’s three “business” courts – the Delaware Supreme Court, the Court of Chancery and the Superior Court – between the two major political parties, which are currently the Democratic Party and the Republican Party. That leaves no room on those three courts for Independents like Adams.

The two provisions together, Adams argued in a lawsuit that he filed in federal court in Delaware, violate the First Amendment to the U.S. Constitution by limiting his freedom to associate with the political party of his choice. A federal district court agreed. The state went to the U.S. Court of Appeals for the 3rd Circuit, which not only struck down the “major party” provision as unconstitutional but also threw out the “bare majority” provision with it.

Defending the state’s system on Monday, Stanford law professor (and former federal appeals court judge) Michael McConnell told the justices that states have broad leeway in setting qualifications for their officials, including judges. Here, he contended, Delaware has decided to create political balance on its courts – to good results, he observed, as the state’s courts are commonly regarded as the best and least partisan courts in the country.

But before the justices can weigh in on the merits of Adams’ arguments, they must decide a threshold issue: whether he has a legal right to sue, known as “standing.” McConnell maintained that Adams does not, calling his claims that he wanted to apply for a judgeship “vague in the extreme.” Adams has never specifically said that he will apply for a judgeship if he becomes eligible, McConnell stressed; to the contrary, McConnell observed, Adams has passed up existing opportunities. If these kinds of claims are enough to allow Adams to sue, McConnell warned the justices, the door will be open for anyone to challenge constitutional provisions with which they disagree.

A few justices appeared unconvinced by McConnell’s arguments, beginning with Chief Justice John Roberts. The Supreme Court’s cases require that a person who is injured by being excluded from competing for a job merely has to establish that he is ready and able to compete for the job, Roberts told McConnell. In this case, Roberts noted, Adams said that he would apply for the next available judicial position. What more, Roberts queried, does he have to do?

Justice Stephen Breyer returned to this point a few minutes later. Adams said that he would apply for any judgeship were it not for the requirement that he be either a Democrat or a Republican. Do you think, Breyer asked McConnell, that Adams is insincere?

Justice Elena Kagan also weighed in. Isn’t the answer, she posited, that it would be “completely futile” for Adams to apply? Kagan compared Adams’ case to cases involving challenges to a university’s admissions policy, stressing that a court would not look at whether a student challenging the policy would have a good chance of being admitted. As long as the policy remains in effect, Kagan concluded, the student can challenge the policy.

McConnell pushed back, reiterating that Adams was less interested in a judgeship than he was in “pursuing a theory that he read about in a law review.” And although some justices seemed skeptical of McConnell’s arguments, they also pressed lawyer David Finger, representing Adams, about whether Adams has standing. Roberts observed that the “strongest statement” in Adams’ favor is that he would “consider and apply” for a judgeship. “If I got an application for a clerkship from someone” that said that, “I wouldn’t know what to make of it,” Roberts told Finger.

Justice Samuel Alito also focused on this statement, asking Finger whether it means that Adams would actually apply for a future vacancy. Finger responded that he would, but Alito appeared dubious. If you are going to apply, he said, you are done considering.

Justice Clarence Thomas – who generally does not ask questions when the justices are in the courtroom but has actively participated during telephonic arguments, in which each justice has an allotted period of time to ask questions – suggested to Finger that, under the court’s cases on standing, the intent to do something “someday” is not enough to provide a right to sue. “This looks much like that,” Thomas declared. And Thomas clearly seemed to regard a mere intent as problematic. If you don’t need to do anything more than announce your intentions, Thomas asked Finger, how formal would that announcement have to be? Is it enough to make an announcement “at a cocktail party”? What if the person making the announcement has a long history, Thomas queried, of announcing that he will do something but not following through?

Turning to whether the “major party” provision violates the First Amendment, Alito seized on McConnell’s concession that it would not be appropriate for a state to mandate that its courts be dominated solely by one political party. In a question that carried added significance at a time when Senate Republicans and the White House are moving forward with the nomination of Judge Amy Coney Barrett to succeed Ginsburg, potentially solidifying a 6-3 conservative majority on the court, Alito asked McConnell to identify the dividing line between a partisan makeup that would be appropriate and one that would not. Would a court made up of eight Republicans and one Democrat be appropriate? What about seven and two? Six and three?

Justice Sonia Sotomayor questioned why Delaware needed to restrict the “business courts” to Democrats and Republicans. Why doesn’t the “bare majority” provision, she asked, do enough to promote the state’s interest in having bipartisan courts?

McConnell explained that the “major party” provision serves as a “backstop” to the “bare majority” provision, preventing the governor from circumventing the partisan-balance requirement by appointing a political ally who is not registered as a Democrat or Republican. This case is a good example, he posited: Adams was a longtime Democrat who changed his voter registration to Independent shortly before he wanted to apply for a judgeship.

Justice Neil Gorsuch conceded that the “major party” provision might serve a “backstop” role, but he pointed out that it also bars “a great percentage of the population” – nearly a quarter of Delaware’s citizens – “from participating in the process.”

Justice Brett Kavanaugh echoed that thought. Why, he asked, wouldn’t the state better achieve its goal of a balanced judiciary by using judges who did not belong to either major party?

The justices also had tough questions for Finger about the substance of Adams’ challenge. Gorsuch noted that the “major party” provision was intended to address the problem of political patronage by seeking balance on the state’s courts, even if it meant that the governor might have to choose someone from a different political party. Moreover, Gorsuch observed, states have a lot of leeway in choosing their officials.

And the justices seemed even more concerned about the broader effect that a ruling for Adams might have on other governments around the country. Alito asked Finger whether it would be any different if a governor indicated that he would never appoint someone from the opposing political party as a judge; Finger responded that it would not. Although Finger stressed that a ruling for his client would “not necessarily” have any effect on other partisan-balance rules elsewhere, it is not clear whether the justices shared his view.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.