Justices may strike down Delaware judiciary’s party requirement

The Courtroom of the Supreme Court showing Associate Justice Ruth Bader Ginsburg’s Bench Chair and the Bench in front of her seat draped in black following her death on Sept.18. On Monday, the eight-member court heard arguments in Carney v. Adams. | PHOTO COURTESY OF FRED SCHILLING/SCOTUS

WASHINGTON – In the first case of their 2020-21 term, the U.S. Supreme Court justices wasted no time needling counsel representing the state of Delaware in a case that could change the decades-old rules under which the state’s top judges are appointed.

The case, Carney v. Adams, will be 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 is whether a state can dictate that judges be selected from major political parties and whether it can legally divide judgeships amid parties.

The plaintiff, James 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 state’s lead counsel Michael McConnell, of Wilson Sonsini Goodrich & Rosati, fielded questions from liberal and conservative justices alike on why the requirement to be a Republican or Democrat should not be struck down, as the Third Circuit Court of Appeals previously ruled.

“The reason for this is not to exclude independents or the Green Party, but rather as a necessary backstop to the bare majority requirement, because without it, it would be just too easy for the governor to name a political ally from an ally party,” McConnell replied, citing Adams’ longtime Democratic affiliation and subsequent switch to a minority party – a potential loophole that could be exploited.

Justice Clarence Thomas questioned how far Delaware could take its 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?” he asked.

McConnell responded that he didn’t believe such a law would pass Constitutional muster, citing previous rulings that have said “qualifications have to be reasonably appropriate.”

Justice Brett Kavanaugh wondered how the division of judgeships among the major political parties helped ensure that their rulings would not be partisan.

“Why can’t independents even better serve the goal of a balanced judiciary?” he asked, to which McConnell said the provision wasn’t so much about the applicants, but a check-and-balance against a governor stacking a court.

McConnell conceded under his questioning from Kavanaugh that the major party principle wasn’t an “essential backstop,” but that it was a “valuable one.”

If the state has a chance of winning its side, it will likely rely upon the court’s finding that Adams lacks standing in the case, meaning that he hasn’t proven that he was aggrieved by the process. McConnell steadfastly argued that although Adams testified in a deposition that he was open to applying for any of the state’s judgeships, he never applied for open judgeships on the Court of Common Pleas or Family Court, which don’t have any partisan requirements.

Some of the justices were clearly intrigued by the argument that Adams never physically attempted to apply for an open judgeship, including Thomas who said it aligned with the finding of the controversial 1992 case Lujan v. Defenders of Wildlife that declared injury must be direct to have standing. Adams’ attorney David L. Finger, of Finger & Slanina LLC, was forced to contend with questions largely around his client’s standing, including how to judge the sincerity of his desire to be a judge.

Most justices continued to return to the idea of whether physically applying was necessary to have standing though.

“It would be completely futile to apply. I mean, as long as this constitutional provision is in effect and he’s an independent, he’s not going to get a position so why would we insist that he has to file an application?” said Justice Elena Kagan, who brushed aside the argument that Adams didn’t apply for lower court judgeships. “As long as this policy remains, in effect, you can just challenge the policy.”

“You keep saying he hasn’t applied. Of course, he hasn’t applied, he’s not eligible. That’s the point,” Kavanaugh added.

Despite the tough questioning from the eight Supreme Court justices – the hearing was the first since the passing of Justice Ruth Bader Ginsburg in September and will be decided by the rare eight-member court – McConnell sought to remind the high court of an important fact in a politically charged time regarding the nation’s judiciary.

“[The framers of Delaware’s Constitution] wanted the judiciary to remain stable, balanced and nonpartisan even when elections go all for one party for a period of time,” he said. “Their decisions have survived the test of fire. For the last 27 years, one party has held both the governorship and the Senate of Delaware, but the courts have remained balanced and nonpartisan. That is a remarkable achievement.”

By Jacob Owens

jowens@delawarebusinesstimes.com