Carney v. Adams
Does a state law that effectively limits judicial service to members of the Democratic and Republican parties violate the First Amendment?Advocates
- Michael W. McConnell for the petitioner
- David L. Finger for the respondent
Article IV, sec. 3 of the Delaware State Constitution provides that “…three of the five Justices of the Supreme Court in office at the same time shall be of one major political party, and two of said Justices shall be of the other major political party.” Thus, today, membership on that Court is open to only Republicans and Democrats, each of which is limited to a “bare majority” on the court. Similar “major party/bare majority” rules govern membership on the Superior Court and Chancery Court bench. By contrast, a “bare majority” rule (but not a “major party” rule) governs the Family Court and Court of Common Pleas. This rule limits members of any party to a bare majority on the court but does not regulate the membership of the rest of the court, allowing Independents and third-party members to serve.
The challenger in Carney is a former major party member who left his party and registered as an Independent. He challenged both the “bare majority” rule on all five courts, and the “major party membership” rule governing Delaware’s three most prestigious courts. The Third Circuit denied him standing to challenge the “bare majority” rule, since it does not bar the plaintiff from service on any court, but struck down the “major party” requirement under the patronage cases – Elrod v. Burns and Branti v.Finkel. The Circuit then ruled that the “bare majority” provisions were not severable from the “major party” provisions and invalidated both. Delaware sought certiorari on both issues. The challenger did not cross-petition on his lack of standing to challenge the “bare majority” rule.
The Justices’ questioning zeroed in on the challenger’s standing under Lujan and Gill to contest the “major party” requirement, noting that the challenger had failed to apply for a judgeship on numerous occasions and had answered equivocally about whether he was prepared to apply in the immediate future. To the extent the questioning reached the merits, it often centered on the constitutionality of the “bare majority” rule. Questions on the constitutionality of the “major party” rule asked whether that rule is necessary to make the “bare majority” rule effective, with Delaware arguing that “major party” rules are needed as a prophylaxis to prevent members of one or another party from disguising themselves as Independents to frustrate the “bare majority.” There was no discussion of Delaware’s experience with administering a “bare majority” rule on its two principal trial courts – Common Pleas and Family – in the absence of a “major party” requirement.
Justice Kavanaugh’s question seemed an excellent opportunity for the challenger to nail down a likely win on the “major party” requirement, push the much harder “bare majority” issue off to another day, and take a swipe at winning it all under non-severability.Carney v. Adams on Oyez: https://www.oyez.org/cases/2020/19-309