By Lisa Soronen
In Carney v. Adams the U.S. Supreme Court held unanimously that James Adams lacked standing to challenge a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance.
Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party.
It also requires, with respect to three of those courts, that the remaining members belong to “the other major political party.” So, as a practical matter, to be on three of Delaware’s courts a person must belong to one of the two major political parties.
James Adams, a Delaware lawyer and political independent, sued Governor John Carney claiming Delaware’s major party requirement is unconstitutional. The court, in an opinion written by Justice Stephen Breyer, concluded Adams lacks standing to bring this lawsuit.
To have standing a litigant must “prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.” For Adams to prove he was harmed he had to “at least show that he is likely to apply to become a judge in the reasonably foreseeable future if Delaware did not bar him because of political affiliation.” According to Breyer, “three considerations, taken together, convince us that the record evidence fails to show that, at the time he commenced the lawsuit, Adams was ‘able and ready’ to apply for a judgeship in the reasonably foreseeable future.”
First, while Adams twice said he would apply for judicial openings, he made these statements “without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.”
Second, “Adams’ failure to apply previously when he was eligible, his reading of the law review article [suggesting the major party rule was unconstitutional], his change of party affiliation [from Democrat to Independent], and his swift subsequent filing of the complaint show a desire to vindicate his view of the law,” rather than to actually obtain a judgeship.
Finally, “if we were to hold that Adams’ few words of general intent—without more and against all contrary evidence—were sufficient here to show an ‘injury in fact,’ we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions at the request of one who, without other concrete injury, believes that the government is not following the law.”
While the Supreme Court didn’t discuss the merits of this case, Adams argued that the First Amendment prohibits the governor from making judicial appointments based on political party. The State and Local Legal Center (SLLC) filed an amicus brief disagreeing.
In a brief concurring opinion, Justice Sonia Sotomayor picked up on an argument in the SLLC’s brief that states and local governments routinely rely on bipartisan decision-making processes in judicial selection, elections administration, ethics enforcement and more. Sotomayor noted that partisan balance requirements “have existed in various forums for roughly 150 years, currently feature in a large number of public bodies, and have been shown to help achieve ideological diversity.”
Kirti Datla and Kristina Alekseyeva, Hogan Lovells, wrote the SLLC amicus brief in this case which the following organizations joined: National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association and International Municipal Lawyers Association.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.