Next Monday, the Supreme Court will begin its 2020 term by hearing arguments in a challenge to Delaware’s constitutional provisions requiring partisan balance on many of the states’ courts. While the case is about one state, it could have a far-reaching impact on the systems many states use to pick their judges, as well as on hundreds of government bodies designed to be bipartisan. There could also be reverberations in the realm of corporate law, since so many large companies are based in Delaware.
The case, Carney v. Adams, comes amidst intense dispute over how we pick justices on the U.S. Supreme Court following the death of Ruth Bader Ginsburg. From adopting 18-year term limits to using randomly-selected rotating panels of justices, many of the proposals are aimed at reducing the political temperature around high court appointments. With that debate raging, the Court is set to decide how far states can go in trying to depoliticize their courts and judicial selection systems.
Currently, Delaware’s governor appoints judges with confirmation by the state Senate. This is similar to how several other states pick their judges, but with a key difference: the drafters of Delaware’s constitution put in extra protections to make sure that even if the governor and the legislature are always from the same political party, the courts won’t be dominated by judges from that party.
Since 1897, Delaware’s constitution has required that “not more than a bare majority” of judges on the state’s courts be members of the same political party. In 1951, when the state constitution was amended to establish a new Supreme Court, the amendments required that all of the judges not in the majority on Delaware’s highest courts must belong to the “other major party.” The practical impact of these provisions is that, for the courts to which they apply, benches are comprised only of judges registered either as Democrats or Republicans.
To be sure, picking judges based on their political affiliation may seem odd when the judiciary is supposed to be less partisan than the other branches. But the framers of Delaware’s constitution inserted these provisions to reduce partisanship and restore public confidence in the courts. As one delegate to Delaware’s 1897 constitutional convention explained, “we have had for twenty years a Judiciary composed of members of one political party,” a fact that “is not calculated to inspire confidence in the Judiciary.”
And if framers of that constitution were around today, they would rightly still be concerned about the politicization of judicial selection. In the 38 states that elect their high court justices, opaque special interest groups have increasingly dominated elections, often spending six- and seven-figure sums to influence who sits on state supreme courts. Governors in states without limitations like Delaware’s have politicized judicial appointments, too. In New Jersey, then-Gov. Chris Christie upended a half-century of tradition of partisan balance on the state’s supreme court in an attempt to give his partisan allies a supermajority.
Now James Adams, a Delaware lawyer who was formerly a registered Democrat and recently became an independent, has challenged Delaware’s constitutional provisions, arguing that Delaware can’t make judicial appointments based on a person’s political party. The Third Circuit Court of Appeals agreed with Adams that Delaware can’t exclude him from judgeships because he is an independent, and held that the “bare majority” provision couldn’t be separated from the “other major party” provision even though the former existed without the latter from 1897 to 1951. Delaware appealed to the U.S. Supreme Court, and the Brennan Center has filed a friend-of-the-court brief in support of the state.
The ruling could upend Delaware’s longstanding system of picking judges and have tremendous ripple effects. To begin with, because two-thirds of Fortune 500 companies are incorporated in Delaware, the state’s courts dictate corporate law for the nation. A former chief justice of the Delaware Supreme Court wrote that Delaware’s “depoliticized judiciary” has led “to Delaware’s international attractiveness as the incorporation domicile of choice” for so many businesses. A change to how Delaware selects its judges could lead to, for better or worse, substantive changes in the law governing corporations, or at least a potential for legal instability that would lead businesses to incorporate elsewhere.
The decision could also affect how a number of other states pick their judges. While no other state requires judges to be balanced by party, more than a dozen states use judicial nominating commissions — which vet and recommend candidates for appointment — that do have requirements similar to both Delaware’s “bare majority” and “other major party” provisions. A ruling by the Supreme Court that one or both of these provisions are unconstitutional in Delaware would put their status in doubt across the country.
And beyond judges, hundreds of state and local bodies have partisan balance requirements that a ruling against Delaware could call into question. These include redistricting commissions, ethics commissions, public university boards of trustees, and state audit commissions. According to a friend-of-the-court brief from groups representing state and local governments, these designs “reflect a judgement that decisions made by these bodies should not be dominated by, and should not be viewed by the public as being subject to, partisan politics.”
At the federal level, Congress has mandated partisan balance on bodies as crucial as the Securities and Exchange Commission, the Federal Election Commission, the Federal Communications Commission, and the Court of International Trade. Again, the Supreme Court’s decision could call each of these requirements into question.
Delaware’s requirements for judges are unique, and there are other systems that could effectively reduce the role of partisan politics in judicial selection without limiting who may apply to judicial vacancies. In fact, the Brennan Center recommends that states adopt an accountable appointment system, which employs a diverse and bipartisan commission to vet and recommend candidates for appointment by the governor.
But, at a time when judicial selection is deeply politicized and faith in government institutions generally is at risk, the Supreme Court should not disrupt a system designed by Delaware in response to specific concerns in the state. And it certainly should not issue a decision that would raise questions about the validity of hundreds of government bodies designed to instill public confidence.