The U.S. Supreme Court says Delaware’s judicial balance rule can stand. But the plaintiff is not giving up.
The Justices ruled unanimously to uphold Delaware’s constitutional requirement that judges appointed to Chancery Court, Superior Court and the state Supreme Court be a member of one of the two major political parties.
The rule also says neither party can hold more than a bare majority of the judgeships.
James Adams, a politically independent attorney, sued the state over the requirements, arguing they disqualify him from judgeships.
The nation’s highest court ruled Adams had no standing to bring the case with Justice Breyer writing Adams failed to show that at the time he brought his suit he was “able and ready” to apply for a judgeship in the reasonably foreseeable future.
Breyer adds Adams failed to show he would suffer personal, concrete, and imminent injury because of the rule.
"If we were to hold that Adams’ few words of general intent—without more and against all contrary evidence—were sufficient here to show an “injury in fact,” we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions at the request of one who, without other concrete injury, believes that the government is not following the law," Breyer wrote. "Adams did not show that he was “able and ready” to apply for a vacancy in the reasonably imminent future. Adams has not sufficiently differentiated himself from a general population of individuals affected in the abstract by the legal provision he attacks. We do not decide whether a statement of intent alone under other circumstances could be enough to show standing. But we are satisfied that Adams’ words alone are not enough here when placed in the context of this particular record."
But Adams’ lawyer, David Finger, says the standing issue has been resolved. He plans to file a new case this week.
“During the course of this litigation Mr. Adams has applied and been rejected from three judgeships in Delaware,” Finger said. “So that creates, we believe, standing. And that will allow him to proceed with a new lawsuit, since the First Amendment issue was never decided.”
Although a U.S. District Court judge and a federal appeals court ruled Delaware’s judicial balance provisions unconstitutional, Finger admits victory in a new case is not guaranteed.
“Those lower court decisions are no longer binding, because they were reversed— albeit on a legal technicality issue not on the substance of whether there’s a First Amendment violation or not,” he said. “The law allows a person who’s been dismissed due to a lack of standing to file a new lawsuit if they’ve acquired standing in the interim.”
The Supreme Court Justices did not weigh in on whether the major party or bare majority requirements are constitutional, though Justice Sotomayor suggested in a concurring opinion the bare majority requirement is on more solid ground.
"Bare majority requirements preclude any single political party from having more than a bare majority of the seats in a public body. Such requirements have existed in various forums for roughly 150 years, currently feature in a large number of public bodies, and have been shown to help achieve ideological diversity," Sotomayor wrote. "Major party requirements like Delaware’s, by contrast, preclude anyone who is not a member of the two major political parties from serving in a public body. They are far rarer than their bare majority cousins, and they arguably impose a greater burden on First Amendment associational rights."
Sotomayor also wrote state courts are better suited to settle the issue of severability, whether one of the two requirements could stand without the other.
The ruling was 8-0 with Justice Barrett not particpating in the case. The decision overturns two lower ruling for Adams and sends the case back to the Third Circuit Court of Appeals for dismissal.
Although the Supreme Court did not rule on the merits of the case, Steffen Johnson, a lawyer with Wilson Sonsini Goodrich & Rosati who was part of the legal team representing Gov. John Carney, is confident in his argument.
“The judges of Delaware decide the common law. They very much exercise important legal [and] policy-making functions,” Johnson said. “Setting the requirements for that type of position is very much at the core of state power.”
Johnson paints Thursday's decision as good for business. He notes a majority of Fortune 500 companies are incorporated in Delaware—and says businesses look to the Delaware courts for stable, nonpartisan decisions.
“The business community can continue to have confidence that they can go to those courts and receive that kind of decision making after today,” Johnson said.
This story has been updated.
