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UPDATED: Supreme Court denies Del. judicial balance challenge

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The Supreme Court of the United States ruled Dec. 10 that the plaintiff challenging Delaware’s judicial balance requirement lacked standing. | PHOTO COURTESY OF WIKICOMMONS

WASHINGTON – The U.S. Supreme Court unanimously ruled Thursday morning that Delaware’s requirement for partisan balance on its top courts could continue because the plaintiff in the case lacked standing.

The case, Carney v. Adams, was closely watched by corporate America, as it impacts courts where litigation is heard for more than a million incorporated businesses, impacting shareholders, executives and more. At question was whether a state can dictate that judges be selected from major political parties and whether it can legally divide judgeships amid parties.

The court never truly weighed into those questions, however, and instead decided only that plaintiff James Adams hadn’t proven that he was harmed by the Delaware law. That means the state could face future challenges to its requirements.

Adams is a registered independent who is ineligible to serve on Delaware’s top courts – the state Supreme Court, Court of Chancery and Superior Court – simply because he is not a Democrat or a Republican.

Delaware has required that the state’s courts have bipartisan representation since 1897, known as the bare majority principle, 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 major party principle was added 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.

The majority opinion, authored by Justice Stephen Breyer, ruled that Adams failed to show he was “’able and ready’ to apply for a judgeship in the reasonably foreseeable future.”

“This case begins and ends with standing,” Breyer wrote.

The justices, who sidestepped the larger issues at play despite needling counsel in the October arguments hearing, said that Adams’ grievance was too abstract to fulfill judicial precedent, and ruling in his favor may impact future Supreme Court opinions.

“For example, Adams did not apply for numerous existing judicial vacancies while he was a registered Democrat and eligible for those vacancies. He then read a law review article arguing that Delaware’s judicial eligibility requirements unconstitutionally excluded independents, changed his political affiliation to independent, and filed this lawsuit shortly thereafter,” Breyer noted.

The eight justices who heard the case – the hearing was the first after the passing of Justice Ruth Bader Ginsburg in September and before Justice Amy Coney Barrett was confirmed – did not address the constitutionality questions ruled on by the U.S. District Court and Third Circuit Court of Appeals. The latter of which ruled that Delaware could not limit top bench positions to only registered Democrats and Republicans, therefore excluding independents and unregistered voters, but could continue to require partisan balance.

While Justice Sonia Sotomayor agreed with her colleagues in dismissing Adams’ case, she also wrote a concurring opinion regarding whether the state’s “bare majority” and “major party” principles could be dealt with separately.

She argued that examples of requirements for partisan balance, or “bare majority,” are numerous across states and have “shown to help achieve ideological diversity.” The “major party” principle requiring membership of one of the two primary political parties was more questionable, according to Sotomayor.

“They are far rarer than their bare majority cousins, and they arguably impose a greater burden on First Amendment associational rights. These differences may require distinct constitutional analyses,” she wrote.

She concluded that the issue of the “major party” principle is best answered by the Delaware Supreme Court since it would impact the state’s branches of government, citing cases in other states regarding similar issues. Sotomayor’s advice matches arguments from the state’s counsel that the Third Circuit had overreached in deciding the laws were severable without having state judges weigh in.

In a statement to Delaware Business Times after the Supreme Court’s ruling, Gov. John Carney said he was pleased with the outcome.


“Delaware’s judiciary has a longstanding reputation as objective, stable, and nonpartisan,” he said. “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.”

Steffen Johnson, chair of Wilson Sonsini Goodrich & Rosati’s Supreme Court & Appellate practice who worked on the case, called the ruling a “terrific victory” for the governor, state residents and “businesses across the globe, which have long looked to Delaware’s courts for stable, fair-minded, and non-partisan decision-making.”

On Thursday evening, one of the state’s senior counsel Randy Holland, who served on the Delaware Supreme Court for more than 30 years before returning to private practice at Wilson Sonsini, said that judges have to consider a case’s controversy, and can’t weigh into philosophical questions.

“What you see in the opinion is they’re saying, ‘Was he really interested in being a judge or was he simply interested in challenging the Constitution?’” he said. “It was pretty clear from all the questions [from the justices] that they were worried about what they were going to do with their standing jurisprudence.”

An email request for comment to Adams’ counsel, David Finger of Finger & Slanina in Wilmington, regarding the ruling and whether the plaintiff may seek to retry the case after better establishing standing was not immediately returned Thursday.

By Jacob Owens

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