Opinion analysis: Court throws out challenge to Delaware rules on bipartisanship in judiciary

The Supreme Court on Thursday tossed out a challenge to a Delaware constitutional provision requiring that appointments to the state’s major courts reflect a political balance. The justices unanimously agreed that John Adams, the Delaware lawyer contesting the requirement, lacks a legal right to sue, known as standing, because he did not show that he was “able and ready” to apply for a judgeship on one of the Delaware courts. The justices did not reach the merits of Adams’ case, raising the prospect that the court could confront the issue in a later case.

Adams was a registered Democrat who worked in the Delaware Department of Justice from 2003 until 2015. In 2017, Adams changed his party affiliation to Independent. He says that he wanted to apply for a judgeship, but he believed that two provisions in the Delaware constitution would block him from doing so because he was neither a Democrat nor a Republican. The first provision, known as the “bare majority” provision, requires that no more than a bare majority of the judges on the state’s five main courts be affiliated with any one political party. The second provision, known as the “major party” provision, 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. Adams went to federal court, where he argued that the two provisions violate the First Amendment to the U.S. Constitution by limiting a judicial candidate’s freedom to associate with the political party of his choice.

The district court ruled for Adams, and the U.S. Court of Appeals for the 3rd Circuit struck down the “major party” provision. The state then went to the Supreme Court, which agreed to weigh in last year but delayed the oral argument until October 2020 because of the coronavirus pandemic.

In a 12-page opinion by Justice Stephen Breyer, the justices agreed unanimously that Adams had not shown the kind of concrete and specific injury that he needed to challenge Delaware’s party-balance requirements. Emphasizing that the dispute before the court was a “highly fact-specific” one, Breyer wrote that Adams would need to show that he was “‘able and ready’ to apply for a judgeship in the reasonably foreseeable future” – which he could not do. Simply arguing that he would apply, without any references to past applications or efforts to determine when a vacancy might open up, is not enough, Breyer reasoned. Taken in context, Breyer posited, Adams’ argument seems to suggest only “an abstract, generalized grievance, not an actual desire to become a judge.” Moreover, allowing Adams’ lawsuit to go forward based only on his “few words of general intent” would “significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions.”

Breyer cautioned that the Supreme Court was not deciding whether a statement of intent, without more, might be enough to provide a legal right to sue in another case. “But we are satisfied,” he concluded, “that Adams’ words alone are not enough here when placed in the context of this particular record.”

Justice Sonia Sotomayor filed a brief concurring opinion in which she explained that, because another challenge to the constitutionality of party-balance rules was likely to return to the court, she wanted to “highlight two important considerations that may inform” the justices’ response. First, she noted, “there are potentially material differences” between the “major party” provision and the “bare majority” provision: the latter is a fairly common requirement that applies to many public bodies, while the former is “far rarer” and “arguably impose[s] a greater burden on” First Amendment rights. Second, she continued, those differences suggest that the best course of action for federal courts considering similar questions in the future might be to ask the state’s highest court for a ruling on whether the “bare majority” provision can survive even if the “major party” provision is deemed unconstitutional.

Justice Amy Coney Barrett, the court’s newest justice, did not participate in the decision, which was argued before she was confirmed to fill the vacancy created by the death of Justice Ruth Bader Ginsburg.

This post was originally published at Howe on the Court.