Regular readers will recall that I did a Supreme Court preview of Carney v. Adams, the case challenging the Delaware requirements that the membership of its courts be balanced between the two major political parties:
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.
Delaware successfully sought a writ of certiorari from the SCOTUS. I predicted that, if the Court reached the Marits, that Delaware should and would win. However, I also noted that:
In granting the state’s petition, however, the Supreme Court required the parties to also address the question of Adams’ standing.
The Supreme Court’s request for briefing on the standing issue suggests that the Court may be zeroing in on two key weaknesses in Adams’ case. First, Adams had been a registered Democrat until February 2017. While registered as a Democrat, Adams had once applied for a position on the state’s Family Court, as to which the major party rule does not apply, but had never applied for a position on any of the three courts to which that rule does apply. Second, since re-registering as an independent in 2017, Adams had considered applying for a Superior Court vacancy and a Supreme Court vacancy, but had not in fact done so. The Third Circuit found that Adams had nevertheless suffered the requisite injury on fact because it would have been futile for him—as an independent—to have done so. The Third Circuit also rejected Delaware’s argument that prudential considerations mitigated against recognizing Adams as having standing. Accordingly, it seems plausible that the Justices who voted to grant the petition may be teeing this cases up as an opportunity to clarify standing rules.
I was right. As Amy Howe explains over at SCOTUSblog:
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. ...
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.”
Interestingly, Howe notes that "Justice Sonia Sotomayor filed a brief concurring opinion in which" she previewed her views of the merits in case the case or a similar one gets back to the Court:
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.
I'm not an expert on Supreme Court procedure, but it seems odd that she would preview the merits in case tossed for lack of standing. Likewise, I am not a scholar of severability but I wonder whether the constitutionality of the statutes under federal law would turn on a state court's view of whether they are severable.
Over on Twitter, Ann Lipton opines:
severability is a question of statutory interp - what did the legislature intend. in this case, delaware's.
— Ann Lipton (@AnnMLipton) December 10, 2020