JOSE I. ORTEGA—On October 5, 2020, the U.S. Supreme Court began its term by hearing telephonic oral arguments for Carney v. Adams, a case that considers bipartisanship in the Delaware courts. At the time, only eight justices sat on the bench, following the death of Justice Ruth Bader Ginsburg barely three weeks prior. Meanwhile, members of Congress engaged in their own conversations on judicial balance, following President Trump’s swift nomination of then Seventh Circuit Judge Amy Coney Barrett, which would eventually establish a conservative super majority on the nation’s highest court.
Carney v. Adams centers around a provision in Delaware’s constitution, known as the “major party” provision. The law aims to maintain bipartisanship in the Delaware Supreme Court, the Court of Chancery, and the Superior Court by dividing the seats on those courts between the two major political parties. For example, the five seats on the Delaware Supreme Court are split with three seats currently going to the Democratic Party and two going to the Republican Party. The “major party” provision works in conjunction with the “bare majority” provision, which has prohibited more than a bare majority of judges associated with one political party from occupying the seats on five of Delaware’s courts since 1897.
John Adams, a Delaware lawyer registered as an Independent, filed a federal lawsuit against Governor John Carey in February 2017, arguing that the provisions, which prevent him from sitting on the three affected courts, violate his First Amendment rights to associate with a political party. The U.S. District Court for the District of Delaware found for Adams. On appeal, the U.S. Court of Appeals for the Third Circuit found the “major party” provision unconstitutional, concluding it violated Adam’s rights. Further, the Third Circuit found the “bare majority” provision to be inseverable from the “major party” provision, requiring it be stricken as well (even though the “bare majority” provision outdates the “major party” provision and independently governs two of the State’s other courts).
In addressing whether the “major party” provision is at odds with the First Amendment, Justice Clarence Thomas asked whether Delaware could pass a law requiring all judges to be members of one party. Defense counsel stated that would not be reasonably appropriate. Justice Samuel Alito questioned the defense counsel as to what an appropriate partisan makeup of a hypothetical nine-member court might be. “[W]hat about eight to one, seven to two, six to three, five to four?” he asked—a question the nation is asking of an actual nine-member court.
Proponents of the provisions argue that the current laws maintain public confidence in the State’s judicial institutions by maintaining bipartisanship. They point to this confidence as the reason for Delaware’s attractiveness to corporations and worry that striking the provisions will inject instability into the current system. Further, should the Supreme Court hold the provisions unconstitutional and affirm the Third Circuit, the decision may affect similar rules in judicial nominating commissions in several states and partisan balance requirements in local, state, and federal agencies and government bodies.
What might seem like a question regarding one state’s unique judicial nominating process could have broader implications, especially with the increasing politicization of the judiciary. Eight months prior to the 2016 election, following the death of Justice Antonin Scalia, President Obama nominated centrist Judge Merrick Garland to the Court, but Senate Republicans refused to consider his nomination, as has only been done nine other times in the nation’s history. Four years later, with roughly eight weeks until the election, President Trump nominated now Justice Barrett to replace the late Justice Ginsburg, whose nomination was confirmed with a 96-3 vote in the Senate in 1993. In comparison, Justice Barrett was confirmed by a 52-48 vote, making her the first justice confirmed without bipartisan support since 1869.
The growing partisanship surrounding the courts and the Republican Party’s establishment of a potentially decades-long 6-3 conservative majority has spurred discourse on judicial reform. Some argue that the Democratic Party should seek to increase the number of seats on the Supreme Court from nine to thirteen. Other proposals for reform circulating in the media seek to substantially alter the structure of the Court. Alternatively, perhaps the answer to judicial reform is much simpler and has existed in the Delaware courts since 1897—a constitutional amendment or judiciary act establishing a “bare majority” provision.
The future of the “major party” provision is less clear with Justice Neil Gorsuch observing that, similar to Adams, almost a quarter of the State’s citizens would be excluded from the process if the provision is left intact. However, the oral arguments suggest the “bare majority” provision may survive. Justice Sonia Sotomayor asked why the “bare majority” provision, alone, is not enough to preserve Delaware’s interest in a politically balanced judiciary. While defense counsel argued that the “major party” provision serves as a backstop to prevent appointments of judges from allied parties, he later told Justice Brett Kavanaugh he was not saying the backstop is essential, only valuable. Further, the “bare majority” provision independently governing two of Delaware’s state courts and existing for fifty-four years earlier than the “major party” provision promotes its severability.
The discourse and history suggest the Court may choose to reverse the Third Circuit, at least in part, allowing Delaware to maintain a portion of its judicial balancing system with the “bare majority” provision maintaining bipartisanship in the State’s courts. Should the forthcoming Carney v. Adams decision render the “bare majority” provision viable, future Court reformers could look to Delaware’s established law as a guide for creating a federal equivalent for the Supreme Court, answering Justice Alito’s question with a resounding “five to four.”