Delaware’s Weird—and Constitutionally Suspect—Approach to Judicial Independence

The Supreme Court will soon decide whether one state can constitutionally mandate “partisan balance” on its judicial benches.

An illustration of a scale balancing the state of Delaware.
Channarong Pherngianda / Shutterstock / The Atlantic

A judge, the old saying goes, is a lawyer who knew a politician. Whether judges are nominated by the executive or elected by voters or legislators, politics plays an overwhelming role in the process.

But can a state’s constitution mandate “partisan balance” on the bench—and exclude from judgeships anyone who isn’t either a Democrat or a Republican?

The Supreme Court was—before the coronavirus hit—scheduled to take up that question this past week. Now we don’t know when or how the oral argument will be held. Carney v. Adams, a case from Delaware, has attracted little public attention, but it has attracted a set of high-powered First Amendment advocates. To resolve it, the Court must balance the interests of officeholders who wish to make political supporters into judges, of individuals who wish to serve on courts, and of citizens who want to safeguard the independence of the bench.

The case is doubly important because the courts involved are Delaware’s. The tiny state has fewer than 1 million inhabitants, but 1.4 million registered corporations, including two-thirds of the Fortune 500 companies. Essentially, its state court system is the nation’s corporate-law court, Kent Greenfield, a Boston College professor and the author of Corporations Are People Too (And They Should Act Like It), explained to me in an email.

“Most other major industrialized countries regulate their large businesses at the national level,” he wrote, “and we do too when it comes to labor law and securities law. But the rules of corporate governance—to whom managers owe fiduciary duties, the make-up of corporate boards (are employees represented?)—are determined by state law. And Delaware has won the competition to be the place where most corporations decide to incorporate.”

Corporate lawyers are quite frank that the management-friendly law of the state is a big draw, but so too is the reputation of the state’s courts for fairness, honesty, and efficiency. Not everyone in Delaware, of course, is enamored of the system. Carney flows out of the efforts of two local lawyers who have devoted considerable time to changing it.

To understand the dispute, start in 1897, when Delaware drafted a new constitution. Among other things, the delegates were concerned about the partisan nature of the state’s judiciary, which at that time was appointed by the governor without either legislative approval or popular election.

To address this issue, the delegates provided that, of the state’s top courts, no more than a bare majority—that is, half the members on a court with an even number of judges, and one more than half on a court with an odd number—could be from any one political party. At that time, Delaware had no state Supreme Court; instead, the Court of Chancery heard cases involving contract disputes and wills and trusts, and the Superior Court heard criminal and civil cases awarding money judgment. (Appeals were heard by ad hoc panels made up of the chancellor—head of the Court of Chancery—and two judges of the Superior Court.)

This provision remained in place from 1897 until 1951. When it was written, New Jersey’s state courts were the nation’s leading venue for corporate law. But during the Progressive era, New Jersey Governor Woodrow Wilson’s reforms spurred a corporate migration south to the more business-friendly courts of the Blue Hen State.

The 1897 constitution, however, had not created a state Supreme Court. In 1951, the legislature turned to that omission. To placate partisan opponents of the new court, the legislature applied the “bare majority” rule—but also added that “three of the five Justices of the Supreme Court … shall be of one major political party, and two … shall be of the other major political party.” This is called the “major party” requirement; it was also extended to the Superior Court and the Court of Chancery. The original bare-majority rules remain in effect for all statewide law courts, including those without any major-party requirement.

Then, in 1992, a young University of Pennsylvania law graduate named Joel Friedlander went to a meeting for new admittees to the Delaware bar. “I was told we should be proud because we have the greatest judiciary in the world,” he told me in an interview. The reason, the speaker said, was the major-party requirement. This meant the courts were always almost evenly split between Republicans and Democrats. “I thought, That’s an odd thing to say—because it’s clearly unconstitutional.”

Friedlander, then a moderate Republican, filed that thought away and became a prominent Delaware corporate lawyer, specializing in plaintiffs’ cases challenging mergers and acquisitions or other actions by corporate boards. Over time, the Republican Party swung to the right, and by 2012, he decided he could not remain a member.

Many in Delaware had made the same decision. Until 2000, Delaware was considered a swing state in presidential elections, usually casting its three electoral votes to the eventual winner. The state is now a deeper blue. It has not voted for a Republican presidential candidate since 1988; Democratic candidates now frequently carry Delaware by wide margins. (Barack Obama twice received nearly 60 percent of the vote, while Hillary Clinton carried the state by 11 percentage points.) Statewide offices are wholly held by Democrats, as is the state legislature. Republican Party registration, at 28 percent, is only a few points ahead of “unaffiliated.” Did this party deserve reserved seats on the bench?

In a 2016 article for Arizona Law Review,  Friedlander asked, “Is Delaware’s ‘Other Major Political Party’ Really Entitled to Half of Delaware’s Judiciary?” He argued that the major-party provision “is at odds with United States Supreme Court precedent [on the First Amendment right to ‘free association’ and other free-speech rights], and that, if challenged, it likely would not survive heightened scrutiny.” He added, however, that “no similar weight of authority bears on the constitutionality” of the bare-majority requirement, and that “I express no opinion on whether a First Amendment attack on the Bare-Majority Feature … is viable.”

That brings us to James R. Adams, a longtime Delaware state employee and government lawyer who had himself been on a political journey. Adams, born in 1951, was for many years a state probation officer, then attended the night program at Delaware Law School, graduating in 2000. He worked for the Delaware attorney general’s office. From 2007 to 2015, the state A.G. was Beau Biden, former Vice President Joe Biden’s son. Adams admired Biden, and when Biden left the office in 2015 to run for governor, Adams hoped to follow him to a job at some level in a Biden administration. But Biden died of cancer in May of that year.

Adams retired from his state job and then considered his next move. “I’d thought about being a judge for a long while,” he told me. But though he considered himself qualified, he held back because “the process is so overwhelmingly political” that “everyone in the Delaware legal community knows who the next judge is going to be” long before the appointment is made.

Complicating his quest was his disgust with the state Democratic Party, to which he had belonged for years. After 2016, Adams said, he concluded that the state party was dominated by business interests, while he had moved into the Bernie Sanders progressive left. He quit the party, then faced the requirement of party membership even to apply for one of the seats on the top three courts; the bare-majority rule meant that some openings on the Family Court were closed to him, despite his expertise in that area. Researching the constitutional issue, he found Friedlander’s article and called him. After that, he recruited David Finger, another top corporate lawyer, to handle the challenge. That February, he filed suit against the state, seeking a federal injunction against the “provision … mandating political balance on the courts” as a violation of the First Amendment’s guarantee of freedom of association. A federal district judge, then a three-judge panel of the Third Circuit, agreed.

Some jobs, of course, can be allocated on the basis of political-party membership—high officials of a state’s executive branch, or regulators on independent commissions where partisan balance is important to ensure independence in policy decisions. Much of the briefing in Carney concerns whether judges are “policymakers” within that exception. The Third Circuit briskly blew by that question: “Unlike elected officials and agency representatives who explicitly make policy, judges perform purely judicial functions.” That sounds good, but it’s akin to saying, “We know it’s judicial, because they wear those robes.” One of the persistent puzzles of American law is that no one can draw a clear line between law and politics, or law and policy. But one clear distinction is that judges are not expected to carry out a politician’s priorities, or a party’s program—and that may be the proper dividing line.

Because the major-party rule required potential judges to join a party or be disqualified from the bench, it unconstitutionally limited freedom of association, the Third Circuit panel reasoned. Then it concluded that the bare-majority rule must also be struck down. That’s a bit of a jump. The major-party rule makes independents ineligible for any post at all on the state’s top courts. The bare-majority rule means only that members of a given party can be considered for some seats and not for others—a less-serious invasion of free association.

At the end of the Third Circuit opinion, all three members of the panel somewhat unusually wrote a separate opinion concurring with themselves. There is, they wrote, “little doubt that the constitutional provisions which we today invalidate have resulted in a political and legal culture that will ensure the continuation of the bipartisan excellence of Delaware’s Judiciary.” But not to worry: “That culture appears to be so firmly woven into the fabric of Delaware’s legal tradition that it will almost certainly endure in the absence of the political affiliation requirements that run afoul of the First Amendment.”

Delaware, represented by the former federal judge and Stanford First Amendment professor Michael McConnell, petitioned the Supreme Court for review. The Court’s grant asked the parties to address three questions. First, does the major-party requirement violate the First Amendment? Second, if it does, can the bare-majority requirement be “severed” and allowed to remain in effect? And, third, does Adams have standing to bring the case at all?

Because standing requires what courts call “particularized injury,” it is sometimes necessary for a challenger to go through a futile process before going to court. Adams was not, in fact, turned down for a state judgeship at all; he did not apply for one. Adams argues that the announcement of a vacancy itself specified that applicants had to be members of the Democratic Party. “The constitution prevents me from applying,” he told me in an interview. “What am I supposed to do? How do I challenge it if I can’t even apply?”

It’s hard not to be moved by that plea—at least to the extent of wishing the major-party provision to fall. The bare-majority requirement, by contrast, seems deeply refreshing—and less problematic under the First Amendment. One wishes it could be applied to the federal bench.

Most of the briefs on both sides, like the Third Circuit concurrence, praise the high quality of Delaware’s courts. Even some outsiders who are critical of them, like Kent Greenfield of Boston College, find merit in the requirement of some partisan diversity on the bench. “Political homogeneity on the [Delaware] bench would make the courts less eager to perform the difficult but necessary tasks of fair analysis and justification,” he said. “Until we get a national system like most other modern economies, the Delaware courts will be the most important business court in the country. Let’s not make it worse.”