The U.S. Supreme Court started its 2020 term Monday hearing arguments in the challenge to Delaware’s judicial balance rule.
Delaware’s constitution requires judges appointed to Chancery Court, Superior Court and the state Supreme Court be members of one of the two major political parties. Neither party can hold more than a bare majority of the judgeships.
James Adams, a politically independent attorney, sued the state over these requirements, arguing they disqualify him from judgeships.
Monday’s Supreme Court hearing came after two lower courts found the judicial balance requirements unconstitutional. The state is asking the U.S. Supreme Court to overturn those rulings.
Stanford professor and former judge Michael McConnell represented the state Monday.
“The Delaware provisions serve a compelling interest in creating a uniquely balanced and non-partisan judiciary," he said.
But several Justices expressed skepticism, and made a distinction between the two parts of Delaware’s requirement.
“I just don’t understand why the majority party rule promotes either of those two interests and does it in a better way than the bare majority provision," said Justice Sonia Sotomayor.
“If a majority or an even number are Democrats, the rest must be Republicans— and the Green Party need not apply,” said Justice Stephen Breyer. “It can’t.”
McConnell says the major-party provision is a “backstop”—as without it, a Governor could appoint only Democrats and liberal independents—and effectively create an entirely Democratic court.
McConnell also argued that Adams does not have standing to bring the case. He said Adams, who was a registered Democrat until 2017, has not actually applied for judgeships he was or is eligible for— and merely wants to pursue an argument he “read about in a law review.”
“The fact that he could have applied for any number of positions, both before and after he changed his political affiliation, cast serious doubt on his sincerity,” said McConnell.
“A party who suffers unequal treatment has standing to challenge a discriminatory exception that favors others,” countered David Finger, Adams’ lawyer. “As long as judicial seats are allocated exclusively to political parties, unaffiliated lawyers are categorically excluded."
Finger also said the state's argument is based on the assumption that judges' political affiliations determine how they vote in cases.
“This court can look to its own history as refutation of that premise," he said.
Outside parties—including former Chief Justices of the Delaware Supreme Court and the Brennan Center for Justice at NYU Law—filed roughly a dozen friend-of-the-court briefs supporting the state’s argument.
Douglas Keith of the Brennan Center says tossing out the judicial balance requirement could have implications for the way many states pick their judges, and for hundreds of government bodies designed to be bipartisan.
“In a number of states, there are these things called judicial nominating commissions that are used in order to vet applicants for the bench, and then they recommend a short list to the governor for appointment. In a number of states, those commissions which select judges themselves have partisan balance requirements,” he said.
Keith also gives the example of independent redistricting commissions, which often have partisan balance requirements. But he notes the Supreme Court has the “legal tools” to issue a narrow decision, such as one that only applies to judges.
Finger argued a decision in his client's favor would not affect non-judicial partisan balance requirements, “because commissions and agencies all have different issues.”
“It’s too easy to say that this will have a big effect on other decisions—that’s just not [fore]seeable right now,” he said in an interview after the hearing.
Finger says he’s not sure how his arguments were received by the Justices.
“It’s never a good idea to read tea leaves,” he said. “Of course it’s an exhilarating experience to argue before the Supreme Court, but I can’t read anything into it.”
Keith of the Brennan Center says the issue of partisan balance on judiciaries has extra resonance in the wake of Ruth Bader Ginsburg’s death and Senate Republicans’ rush to replace her.
“In this moment, the idea that partisan takeover of the judiciary is possible—that is not theoretical,” he said. “We are in a moment that the public is well aware that parties are trying to have as much influence over the judicial branch as possible.”
“The fact that Delaware’s framers saw this problem happening back in the 1890s, and tried to solve it, and seem to have solved it at least for the state of Delaware in a way that people are satisfied with, there should be significant weight given to that forethought,” Keith added.
This story has been updated.
