Supreme Court hears Delaware judicial balance case

The U.S. Supreme Court heard a case Monday that could invalidate Delaware’s long-existing judicial balance law.

The state constitution requires each of the five major courts to have as close to an even breakdown of judges by political party as possible. The seven-member Court of Chancery, for instance, cannot have more than four Republicans or four Democrats. If the court has four members of one party and one of the individuals in the minority party leaves, the governor must nominate someone from that same party.

The law does differentiate between the Supreme, Superior and Chancery courts and the Family Court and Court of Common Pleas. The first three are not only limited to a “bare majority” from one party but also cannot be filled by individuals from outside the two major political parties.

In effect for more than a century, the provision is frequently cited by Delaware judges, elected officials and attorneys as one of the reasons the state’s judiciary is so well-respected and effective.

But some feel the law clearly leaves more than 180,000 Delawareans out in the cold. In 2017, James Adams, an attorney and registered independent voter, filed suit, claiming that the law strips many in the state “of opportunities for judicial appointments because of their political affiliation, in violation of the First Amendment to the Constitution of the United States.”

In response, lawyers for Gov. John Carney argued that judges are policymakers and thus political affiliation can be fairly considered, touting the law as ensuring an impartial judiciary.

The chief magistrate judge for the District of Delaware struck down the law, prompting the state to appeal. In 2019, a three-member panel for the 3rd U.S. Circuit Court of Appeals sided with Mr. Adams.

Although the ruling in effect gives the governor more power, Gov. Carney again appealed, this time to the nation’s top court.

Originally set to be heard in March, the case was delayed because of the pandemic. Monday’s hearing was just a few weeks after a vacancy on the politically divided top court opened up following the death of Justice Ruth Bader Ginsburg — just the situation the party balance law hopes to solve.

Speaking for the state, former 10th Circuit Judge Michael McConnell argued that the balance provision is constitutional and, even if it is struck down, the requirement to have “not more than a bare majority of the members of all such offices” from one party should still stand.

Allowing independents to be on the bench, he told the court, could lead to gaming the system, in essence.

“I mean, take Mr. Adams as a great example of this because … after having been a lifelong Democrat, he professes to be a Bernie Sanders independent,” he said. “So, if there were already a Democratic majority on the court and the governor were able to name Mr. Adams, it would just fly in the face and frustrate the purposes of the political balance provision.”

The law is the best way anyone has found to protect “the state’s compelling governmental interest in political balance on the courts,” Mr. McConnell told justices in response to questioning.

But the court seemed skeptical of the provision about the two major parties, although there appeared to be more support for the bare majority statute.

“It seems to me that no rightly thinking governor is going to appoint someone from the other party who is completely misaligned with his or her views,” Justice Sonia Sotomayor said. “They could pick … the softest Republican, the one most closely aligned with Democratic values or something of that nature. It just doesn’t seem to me that the mere membership in a party connotes an acceptance by a governor.”

Mr. McConnell told the court Mr. Adams is actually “interested here in pursuing a theory that he read about in a law review, not really getting a judgeship” because he has failed to apply for vacancies on the Family Court or Court of Common Pleas.

“You keep saying he hasn’t applied. Of course, he hasn’t applied. He’s not eligible. And that’s the point,” Justice Brett Kavanaugh said, referencing the Supreme, Superior and Chancery courts.

Representing Mr. Adams, David Finger disputed the claim the laws ensure the court is fair.

“There is no evidence that this highly respected and properly recognized judiciary actually results from this provision,” he said. “That’s a case of a sort of illusory truth effect where a statement is made over and over and people tend to believe it more. But there’s nothing concrete to support that. It’s not really even intuitive.”

Delaware’s five most recent governors and three most recent chief justices, along with the Republican National Committee, the Delaware State Bar Association and the National Conference of State Legislatures, among others, have filed briefs supporting the state’s position.