The Supreme Court Will Answer the Question How Political Can Judges Be

The United States prides itself on maintaining an independent judicial system. In Justice Sotomayor’s controversial dissent in Wolf v. Cook County, she alluded to the Court’s bias towards granting the government extraordinary relief when it is not called for.^[1] In this dissent, the long-standing fear of a politicized judiciary makes a return. Justice Sotomayor “fear[s] that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect.”^[2] To address similar concerns, Delaware created constitutional limitations on how many members of political parties can sit on the bench in order to create a politically neutral bench.^[3] But that method is being contested in Carney v. Adams.^[4]

Thirty-nine of the fifty states use some form of election processes for their judiciary. The types of elections vary from judges facing election after appointment to judges voted upon in partisan or nonpartisan elections just like legislators.^[5] While judges are to remain neutral while interpreting the law, judicial elections raise the question of whether campaigning creates opportunities for political influence.^[6] There are also concerns that electing judges can create a lack of diversity on the bench.^[7] To dodge this problem, Delaware drafted a new constitution in 1897 where neither political party would have more than a bare majority. In 1951, the legislature added the major party requirement for the Supreme Court, the Superior Court and the Court of Chancery.^[8] Out of the five Supreme Court Justices, three would be from one major party and the other two will be from another major party. This is where Carney v. Adams comes into play.

James R. Adams did not apply for a judicial position on Delaware Supreme Court and the Delaware Superior Court because the state of Delaware required that the vacated position go to a Republican.^[9] Adams did not identify as Republican or Democrat; he identified as Independent.^[10] Adams proceeded to challenge the provision in the Delaware Constitution that limited judicial service members of each party so that neither party has a majority, thereby creating a  “political balance.”^[11] Adams argues that Delaware’ constitutional limitations do not indicate how effective an individual will perform their duty: therefore, Delaware must yield to the First Amendment.^[12]

The issue at hand is whether the First Amendment’s guarantee of the right of political association is infringed upon by both the major party requirement and the political balance provision. Adams argues that the right of political association is infringed upon because individuals are excluded from a judgeship based on his political affiliation and those affiliated with major parties are offered opportunities denied to Independents.^[13] The petitioner, Governor John C. Carney relies on appellate precedent, which acknowledges that a judgeship on the Delaware Supreme Court or the Delaware Superior Court has a political component because it is an elected position.^[14] Using precedent, Governor Carney argues that no First Amendment challenge has succeeded on equal protection grounds and that Delaware’s constitution reflects its own choice on how to select judges.^[15] Adams argues that the Supreme Court should use strict scrutiny rather than give deference to the state because the provisions are infringing on Adam’s First Amendment Right.^[16]

Governor Carney appealed this case to the Third Circuit where the District Court ruled in favor of Adams because “judges are not policymakers”^[17] and “decisions judges make in any given case relates to the case under review and not to partisan political interests.”^[18] There has long been a debate on the interaction of politics and the judiciary and whether excessive interaction disrupts the flow of fairness and democracy. No evidence exists that suggests all the states that utilize elections in their judicial system have a reduced sense of fairness. This case is expected to settle the debate on how much politics can interact with the judicial branch until it goes too far.^[19]

If Adams were to succeed in his challenge against the political balance provision of Delaware’s Constitution and Delaware’s major party requirement, a judgeship would be considered employment by the government. Adams’ brief cites two Supreme Court cases holding that the government cannot consider the political affiliation of candidates applying for employment unless the job falls under the policy making exception.^[20] Therefore, he asserts, both provisions should be held unconstitutional. If Governor Carney succeeds, the Court would reject the argument that judgeships are government employment.^[21] The consideration of political affiliation in judgeship would be just another element caused by the policy of electing judges.

[1] Wolf v. Cook Cty., 140 S. Ct. 681, 681 (2020).

[2] Id. at 684.

[3] Del. Const. Art. IV §3.

[4] Adams v. Governor of Delaware, 920 F.3d 878 (April 10, 2019) cert. granted,

Carney v. Adams,140 S. Ct. 602 (Dec. 6, 2019) (No. 19-309).

[5]Rethinking Judicial Selection, Americanbar.org (June 14, 2017), https://www.americanbar.org/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-1/rethinking_judicial_selection/.

[6] Id.

[7] Id.

[8] Garrett Epps, Delaware’s Weird—and Constitutionally Suspect—Approach to Judicial Independence, Atlantic (March 28, 2020), https://www.theatlantic.com/ideas/archive/2020/03/delawares-weirdand-constitutionally-suspectapproach-to-judicial-independence/608971/.

[9] Brief for Respondent at 1, Carney v. Adams, 140 S. Ct. 602 (2019) (No. 19-309).

[10] Id.

[11] Id. at 10.

[12] Id. at 22-24.

[13] Id. at 13.

[14] Brief for Petitioner at 4-5, Carney v. Adams, 140 S. Ct. 602 (2019) (No. 19-309).

[15] Id. at 6.

[16] Brief for Respondent, supra note 9, at 36.

[17] Adams v. Governor of Del., 914 F.3d 827, 829 (3d Cir. 2019).

[18] Id.

[19] Adam Liptak, Supreme Court to Decide if a State Can Consider Political Affiliation in Appointing Judges, NY times (Dec. 6, 2019), https://www.nytimes.com/2019/12/06/us/supreme-court-political-affiliation-judges.html.

[20] Brief for Respondent, supra note 9, at 23.

[21] Brief for Petitioner, supra note 14, at 4.