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Fair Court E-Lert: SCOTUS Rejects Challenge to Delaware’s System of Selecting Judges on Standing Grounds

This E-Lert highlight’s SCOTUS’s rejection of a challenge to Delaware’s method of judicial selection, the House’s passage of a bill that would make federal court records free to the public, and more.

Last Updated: December 18, 2020
Published: July 15, 2021

SCOTUS Rejects Challenge to Delaware’s System of Selecting Judges on Standing Grounds

On December 10, the U.S. Supreme Court rejected a constitutional challenge to Delaware’s partisan balance requirements for its judiciary, holding the lawyer who brought the challenge lacked standing.

The case, Carney v. Adams, involved a challenge to provisions of Delaware’s constitution requiring that no more than a “bare majority” of judges on certain courts belong to the same political party, and for the state’s highest courts, that all judges not in the majority be a member of the other “major party.” The Third Circuit Court of Appeals struck down both requirements last year, finding that the “major party” requirement violated the First Amendment.

Writing for the majority, Justice Breyer said the Court did not consider the constitutionality of Delaware’s partisan balance requirements because the attorney who brought the challenge was not “able and ready” to apply for the judgeships he claimed he was excluded from. Justice Sotomayor, however, filed a concurrence suggesting the “major party” requirement may be unconstitutional, noting it “arguably impose[s] a greater burden on First Amendment associational rights.”

The Brennan Center filed a friend-of-the-court brief in support of Delaware.

House Passes Bill to Make Federal Court Records Free to the Public Despite Federal Judiciary’s Opposition

On December 8, the U.S. House of Representatives passed a bipartisan bill over the objection of the federal judiciary that would make access to federal court records free to the public.

The bill, the Open Courts Act of 2020, would require the federal judiciary to create a new, modernized system that would allow the public to access court records for free. The current system, known as PACER, charges users 10 cents per page to search, view, or download public court filings, with a maximum of $3 per document.

The federal judiciary has come out against the bill, claiming it would result in an increase in filing fees for litigants in civil and bankruptcy cases, and that making public court records free would be a “financial windfall” for banks and legal-database companies.

The public spends over $140 million to access court records through PACER every year. In August, the U.S. Court of Appeals for the Federal Circuit ruled that the federal judiciary has been unlawfully using PACER fees to fund expenses unrelated to providing public access to court records.

North Carolina’s Chief Justice Concedes Election to Incendiary Colleague

On December 12, North Carolina Supreme Court Chief Justice Cheri Beasley conceded the race to retain her seat to Justice Paul Newby after two recounts were held. Of 5.4 million votes cast, Beasley lost to Newby by about 401 votes.  

Beasley, the state’s first Black woman to serve as chief justice and a Democrat, was appointed by Gov. Roy Cooper, also a Democrat, in 2019. In response to her appointment, Newby, a Republican, issued a statement accusing Cooper of placing “raw partisan politics over a non-partisan judiciary” by not picking him, the court’s most senior member, to serve as chief justice, and announced his plan to run for Beasley’s seat in 2020 instead of his.

While campaigning, Newby attacked Beasley and his five other colleagues on the court, calling them six “AOC’s.” He also described the election of Justice Anita Earls, another Black woman, as part of a “long-term strategy by Obama and those who were part of his inner circle.”

On November 3, Republicans were also successful in the races for two other seats on North Carolina’s supreme court, leaving Democrats with a narrow 4–3 majority compared to the 6–1 majority they held prior to the election.

States Suspend Jury Trials Again Due to Covid-19

While almost all state courts closed their doors to the public in March when Covid-19 began to spread across the country, several jurisdictions resumed some in-person proceedings over the summer with certain safety precautions. However, due to the recent spike in Covid-19 cases, some state courts are closing their doors again for the time being.

At least eight states, including Texas, Indiana, and New Jersey, are opting to suspend their in-person jury trials until early next year, and at least seven states and Washington D.C. have suspended jury trials indefinitely. For example, in Utah, the state halted a pilot program to hold in person jury trials until 2021. Unlike the beginning of the pandemic, most states haven’t issued statewide orders regarding court operations, leaving those decisions to local jurisdictions.

Court administrators expect a massive backlog of cases when they eventually resume full in-person operations. For example, Texas would typically hold 186 trials a week prior to the pandemic, but there were only 50 trials held between March and September of 2020. The backlog leaves many defendants awaiting criminal trials to linger in prison, where a person is twice as likely to die from Covid-19 as compared to the general population.