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Supreme Court Considers Partisan Balance Requirements for State Courts

The decision could upset rules for independent state and federal agencies like the Securities and Exchange Commission and Federal Election Commission.

Last Updated: December 10, 2020
Published: October 1, 2020

Update: On Decem­ber 10, the Supreme Court dismissed the case due to lack of stand­ing by the plaintiff.

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.