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Carney v. Adams

The Brennan Center filed an amicus brief urging the Supreme Court not to strike down provisions in the Delaware Constitution that mandate partisan balance on the state’s most powerful courts.

Last Updated: January 28, 2020
Published: January 27, 2020


On December 6, 2019, the U.S. Supreme Court agreed to hear Carney v. Adams, an appeal from the U.S. Court of Appeals for the Third Circuit concerning provisions in the Delaware constitution which mandate that not more than a simple majority of judges on several of the state’s courts may be from one political party and, for the state’s highest courts, reserves the remainder of the seats for judges of the “other major political party.” The U.S. Court of Appeals for the Third Circuit struck down both provisions, finding that the “major party” provision violated Adams’ associational rights guaranteed by the First Amendment and that the “bare majority” provision was not severable from the “major party” provision. The underlying opinion from the Third Circuit is available here.

The case presents three questions to the Court:

  1. Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the "other major political party’'?
  2. Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
  3. Has Adams has demonstrated Article III standing?

The Brennan Center’s Brief in Support of Petitioner

The Brennan Center for Justice, with co-counsel Cravath, Swaine & Moore, filed an amicus curiae brief in support of Delaware, the petitioner. The brief argues that the Third Circuit erred in failing to recognize several important state interests underlying the partisan balance requirements. The rich constitutional history behind the bare majority provision makes clear that the Framers of Delaware’s constitution sought to preserve the public’s confidence in the integrity of the judiciary and avoid single-party entrenchment in the judicial branch. The brief also argues the experiences of judicial selection systems in other states illustrate how Delaware’s system could be politicized without its current safeguards, and that in light of these risks the court should be hesitant to strike down Delaware’s system which has served the state well.

The Brennan Center’s own proposal for judicial selection reform, Choosing State Judges: A Plan for Reform, differs from Delaware’s system. But we recognize that designing judicial selection systems requires balancing important and competing values including judicial independence, accountability, and public confidence, and that the Court should allow states the flexibility to conceive innovative solutions to the challenges their democracies face.

Merits Briefs

Amicus Briefs