Delaware’s Partisan Playbook for Court Appointments Survives Suit

Delaware Avenue in Put-in-Bay, Ohio. (Photo via Analogue Kid/Wikipedia)

WASHINGTON (CN) — Ruling unanimously Thursday, the Supreme Court threw out a challenge to Delaware’s system of keeping the state’s judicial seats split between the nation’s two major political parties.

For the last 120 years, Delaware law has mandated that no more than half of the judges on the state’s Supreme Court, Superior Court and Court of Chancery can be affiliated with one political party, reserving the rest of the seats for members of the other major political party.

Members of one party also cannot make up more than half of the judges on the Family Court and Court of Common Pleas, but the reservation for the other political party does not apply to those courts.

Though Delaware lawyer James Adams called the scheme unconstitutional in a 2017 suit, the high court ruled Thursday that he did not show the necessary “injury” to bring such a case.

“Lawyers, such as Adams, may feel sincerely and strongly that Delaware’s laws should comply with the Federal Constitution. But that kind of interest does not create standing,” Justice Stephen Breyer wrote for the court. While no colleague dissented, Justice Amy Coney Barrett did not participate in the case as it was argued in October before her confirmation.

Himself a longtime registered Democrat, Adams applied for a seat on the Family Court in 2009 but did not get the position. The plaintiff said he considered applying for judgeships on other courts in 2014 and again in 2017, but the openings were all reserved for Republicans because of the political-balance requirements. 

On Thursday, however, the justices disagreed.

“He was wrong about that. In particular, there were three vacancies on those two courts in 2014 for which he, as a Democrat, was eligible,” Breyer wrote. “Adams later conceded that he had indeed been eligible to apply for those vacancies, but he had not done so.”

Another claim contradicted by the record, according to the ruling, was deposition testimony where Adams said he would “apply for any judicial position that [he] thought [he] was qualified for” between 2014 and 2017.

“Between 2012 and 2016, during which time Adams was a practicing lawyer and a registered Democrat, Delaware’s five courts had a combined total of 14 openings for which Adams, then a Democrat, would have been eligible. Yet he did not apply for any of them,” Breyer wrote.

When Adams switched his party affiliation from Democrat to Independent in 2017, he says his chance to become a judge diminished further because of the rules reserving seats for a major party.

But Breyer saw a more cunning motive.

As admitted during deposition, Adams had read a law review article in early 2017 arguing that Delaware’s judicial eligibility requirements were unconstitutional because they excluded independents.

“Adams called the article’s author and said, ‘I just read your Law Review . . . article. I’d like to pursue this.’ The author suggested several attorneys who might handle the matter,” Breyer recounted in the opinion.

“Before that, he had been a Democrat his ‘whole life’ and actively involved in the Delaware Democratic Party. Leaving the party made it less likely that he would become a judge. But doing so made it possible for him to vindicate his view of the law as set forth in the article,” Breyer continued.

He brought his lawsuit eight days after switching parties.

Adams’ attorney David Finger indicated that the courts have not seen the last of his client.

“We are, of course, disappointed by the ruling, but the story has not ended,” Finger said in an email Thursday. “In the interim, Mr. Adams has applied for judgeships and been rejected, and so he now has standing.” 

Finger relayed that they are planning to file a new legal challenge soon.

In a two-page concurring opinion, Justice Sonia Sotomayor emphasized that federal courts, like the ones this case navigated, “are not ideally positioned to address such a sensitive issue of state constitutional law.” 

She suggested they defer the matter to the state’s highest court in the future.

“Certification may be especially warranted in a case such as this, where invalidating a state constitutional provision would affect the structure of one of the State’s three major branches of government,” she wrote.

In the meantime, Steffen Johnson of Wilson Sonsini, the firm representing Delaware, celebrated the court’s ruling.

“[This is] a terrific victory for Governor Carney, the people of Delaware, and businesses across the globe, which have long looked to Delaware’s courts for stable, fair-minded, and non-partisan decision-making,” Johnson said in a statement.

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