by Bethany Blankley
The U.S. Supreme Court accepted a new case for the new year, Carney v. Adams, to determine whether state constitutions can require courts to have a ratio of judges based on their political party affiliation.
The case involves Delaware’s state constitutional requirement that a bare majority of its high court judges be from one political party. James Adams, a retired lawyer and former Democrat, argues the requirement violates the First Amendment.
By law, Delaware’s Supreme Court must have three judges affiliated with one of the two major political parties, and two from the other.
“Such a system assumes, without foundation, that Republicans and Democrats are monolithic in their judicial views and that their political views will control their decision-making,” Adams argued in his Supreme Court brief. “Worse, it reinforces the fears of the public that judges will decide cases based on political affiliation.”
The first page of the brief quotes Justice Neil Gorsuch, who said at his Supreme Court nomination hearing, “I am heartened by the support I have received from people who recognize that there is no such thing as a Republican judge or a Democratic judge. We just have judges in this country.”
The U.S. Court of Appeals for the 3rd Circuit struck down the Delaware law, which Democratic Delaware Gov. John Carney is asking the Supreme Court to reverse.
In his petition, Carney argues the law’s 3-2 political affiliation mandate has contributed to the state’s reputation of having “objective, stable, and nonpartisan” courts.
“These qualities have not come about by accident,” his brief states. “For more than 120 years, Delaware’s Constitution has required a politically balanced judiciary.”
The 3rd Circuit panel highlighted Supreme Court precedents’ stating that politics may not play a role in the hiring and firing of most government workers. In this case, it said, “While judges clearly play a significant role in Delaware, that does not make the judicial position a political role tied to the will of the governor and his political preferences.”
Robert Henneke, general counsel and Director of the Center for the American Future at the Texas Public Policy Foundation, agrees with the court’s decision.
He told The Center Square, “Mandating a partisan viewpoint as a condition to serve in government constitutes First Amendment discrimination and is unconstitutional. Fundamental First Amendment rights include affiliating with a political party as a protected activity. Absent demonstrating a compelling governmental interest, the Delaware state constitutional provision will likely be struck down.”
Delaware is the only state whose constitution requires political ratios for judges serving in its courts.
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Bethany Blankley is a contributor to The Center Square.
