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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