Long time readers may recall that I wrote a WLF backgrounder on Carney v. Adams, a case challenging Delaware's requirement of a politically balanced judiciary:
Delaware’s state constitution imposes two unique requirements on the state judiciary that differentiates its courts from those of all other states. Under the bare majority rule, no more than half of the total number of the members of the state Supreme and Superior courts and the Chancery Court can be from the same political party (50 percent plus one if there is an odd number of judges). Under the major party rule, those judges must be from a “major” political party.
James R. Adams is a Delaware lawyer who has been frustrated in his search for a Delaware judicial position because he is a political independent. Adams sued Delaware Governor Carney in federal court seeking to have the Delaware provisions declared unconstitutional. Delaware argued that Adams lacked standing and, in the alternative, that the judicial-selection provisions fell within the policymaker exception to the First Amendment’s ban on conditioning state government positions on membership in a specific political party. The district court ruled for Adams on both grounds.
On appeal, the Third Circuit held that Adams had sufficiently pled Article III standing. As to the merits, the Third Circuit addressed solely the major party rule. The court nevertheless struck down both it and the bare majority rule on grounds that the latter was not severable from the former.
I argued that the Supreme Court should reverse.
The Supreme Court heard oral argument in the case yesterday.
Bloomberg reports that:
The U.S. Supreme Court seemed likely to reinstate Delaware rules requiring a politically balanced state judiciary, which the state argues are responsible for the “First” state’s outsized role in American corporate law.
... the majority of justices during oral argument Oct. 5 signaled they didn’t seem to think the rules unconstitutionally prohibited Independent and third parties from judicial service on Delaware state courts.
Amy Howe at SCOTUSblog reports that the Court may not reach the merits. Delaware counsel argued that Adams lacked standing, but several justices pushed back strongly on that issue.
... the justices seemed even more concerned about the broader effect that a ruling for Adams might have on other governments around the country. Alito asked Finger whether it would be any different if a governor indicated that he would never appoint someone from the opposing political party as a judge; Finger responded that it would not. Although Finger stressed that a ruling for his client would “not necessarily” have any effect on other partisan-balance rules elsewhere, it is not clear whether the justices shared his view.
Delaware Business Times is something of an outlier, speculating that law is in trouble:
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.
