U.S. Supreme Court hears case on partisan court balance
Next month, the U.S. Supreme Court will hear a case regarding whether a Delaware law that requires all of the courts in the state to be politically balanced is constitutional.
Under current law, Delaware courts must have no more than a one-member majority from either of the two major political parties. The five-member Delaware Supreme Court, for example, must have three Democrats and two Republicans serving, or vice versa.
If the balance became three to two in favor of the Democratic Party and a Republican steps down, the Delaware governor would then have to select a Republican as the replacement. As a result, a nominee for a judicial appointment in Delaware must be affiliated with either the Democratic party or Republican party, and cannot be registered as Independent.
The challenge initially emerged as result of a lawsuit filed by attorney and registered independent voter James Adams in 2017, who argued that his inability to be appointed as a judge due to his political affiliation is a violation of his First Amendment rights.
Louis Moffa, an active trial and appellate litigation attorney, said that whether Delaware’s law is constitutional or not depends on perspective.
“The Supreme Court has said in the past that it’s okay to have partisan choices, where you appoint someone of your own party, if they’re in policy making roles,” Moffa said. “The case really hinges on whether you see judges as policy makers or as something else.”
The case was heard by a federal court later that year, which ruled in favor of Adams. Delaware Gov. John Carney appealed the ruling to the U.S. Supreme Court, despite the fact that a ruling in favor of Adams would allow governors to stack the courts with members of his or her own political party.
Carney is backed by the five most recent Delaware governors and two former state Supreme Court chief justices, who filed amicus briefs advocating for Carney’s position.
“This particular Supreme Court has been very supportive of First Amendment rights,” Moffa said. “It is more likely than not that they will decide that the First Amendment is more important and will not allow anyone to pick judges, or refuse to pick judges, based on political affiliation.”
16 other states require partisan balance on judicial nominating commissions and many states have similar requirements for regulatory bodies. In the event of a U.S. Supreme Court ruling in favor of Adams, Delaware and other states will then have to alter their system of selecting judges.
The U.S. Supreme Court will potentially hear arguments in March, and is expected to issue a ruling in June.