Carney v. Adams

No. 19-309 - Argued October 5, 2020
At Issue

Does a state law that effectively limits judicial service to members of the Democratic and Republican parties violate the First Amendment?

  • Michael W. McConnell for the petitioner
  • David L. Finger for the respondent
Background and Case Commentary

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:

Key Questions from Oral Argument

Justice Gorsuch to Respondent (51:52): Counsel…[t]he Third Circuit held that your client had no standing to contest [the bare majority requirement] because, as an Independent, it doesn’t preclude him from taking office in any judicial capacity. I did not see a cross-petition from you on that…. Are you expecting us to rule on [the bare majority requirement], or do you concede that the issue is not before us?

Burt Neuborne: Thank you, Justice Gorsuch for the opportunity to clarify the issues properly facing the Court. The constitutionality of the “bare majority requirement” is not properly before the Court. The question of whether efforts to assure political balance in the makeup of courts and administrative agencies, to say nothing of legislative bodies, violate the First Amendment raises difficult legal issues that may turn on differing factual and contextual determinations. The resolution of those issues should await a case or controversy challenging the constitutionality of such an effort. The sole legal relevance of the “bare majority requirement” to this proceeding is whether, once this Court invalidates the Delaware Constitution’s ban on Independent and/or third-party judges under the First Amendment, as it needs to do, the “bare majority requirement” can either stand on its own or must also fall, on non-severability grounds. For the reasons asserted by the Third Circuit below, we urge the Court to find the provisions non-severable, remanding the question to the people of Delaware to decide whether to re-enact a stand-alone version of the bare majority requirement.

The sole First Amendment question before the justices is the flat ban on service as a judge on one of Delaware’s three most prestigious courts by anyone, no matter how talented, who fails to pledge allegiance to one of the two major parties. The pernicious effects of such an inflexible political litmus test for judicial office is obvious – it would have prevented the appointment of Justice Felix Frankfurter (who declined to affiliate with any political party) to this Court. The unconstitutionality of such an unyielding political litmus test of political orthodoxy for judicial office is equally obvious. It violates Justice Jackson’s magnificent restatement in West Virginia State Board of Education v. Barnette of the essence of First Amendment protection:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion and force citizens to confess by word or act their faith therein. If there are circumstances which permit an exception, they do not now occur to us."

By categorically conditioning eligibility for service as a judge on its highest court on a pledge of political orthodoxy, Delaware runs headlong into the First Amendment. It is true, of course, that nothing in the First Amendment forces a governor to appoint a politically unorthodox judge, like Felix Frankfurter. There is a world of difference, however, between recognizing that, despite the patronage cases, political orthodoxy (even political partisanship) can be a legitimate factor – even an important factor – in deciding whether to appoint an official to high office, and adopting an unyielding rule of law disqualifying those who choose an unorthodox political path from even the opportunity to be considered. This Court has recognized the difference in many contexts, most recently in the Court’s complex affirmative action jurisprudence that forbids rigid quotas and unyielding eligibility rules but permits consideration of a complicated array of factors.

I should note that Delaware’s defense of its political litmus test for high judicial office is a half-hearted one, based on undocumented speculation about possible bad faith appointment of Republican or Democratic judges pretending to be Independents in order to subvert the “bare majority” requirement. The short answer to such speculation is that, following the teaching of Justice Holmes’ celebrated dissent in Abrams, First Amendment freedoms are made of sterner stuff – they do not disintegrate in the face of speculative predictions.