Carney v. Adams

ADAMS’ ARTICLE III STANDING AS AN INDEPENDENT

Petitioner, Governor Carney, argues that Adams does not have standing under Article III of the United States Constitution to assert a challenge to the Delaware Constitution because Adams has failed to establish an “injury-in-fact” that is “concrete and particularized” for each challenged provision, requirements for Article III standing. Brief for Petitioner, John Carney at 19–20. First, Governor Carney notes that the bare majority provision could injure only members of major political parties by creating a supermajority in the state courts, and because Adams does not belong to either major party, that provision cannot injure him. Id. at 20. Next, Governor Carney asserts that to demonstrate that the major party provision injured him, Adams must establish (1) he had genuine, active plans to apply for judgeships, (2) the constitutional provision prevented him from equal evaluation for these positions, and (3) without the provision, he had a reasonable probability of securing a judgeship. Id. at 20–21. Governor Carney contends that Adams failed to establish all three of these criteria: first, Governor Carney states that Adams’ general interest in one day applying to the courts is too hypothetical to sustain an actual injury. Id. at 21. Second, contrary to Adams’ position in the lower courts, Governor Carney continues, positions were open to Democrats in 2014 for which Adams could have applied, and therefore, the major party provision never cost him an opportunity for a judgeship. Id. Governor Carney posits, moreover, that because Adams’ status as an Independent would not bar him from serving on, for example, the Family Court, Adams could fulfill his general interest in serving as a judge notwithstanding the major party provision, thus undercutting his alleged injury. Id. at 22. Finally, Adams, Governor Carney emphasizes, does not have a reasonable probability of becoming a judge because, at most, the record reflects that he “meets the minimum qualifications” of judgeships. Id. at 22. Furthermore, Carney argues, any harm Adams sustained was self-inflicted by his decision to abandon his Democratic affiliation days before suing. Id. at 23.

Respondent, Adams, counters that he has Article III standing to challenge both provisions of the Delaware Constitution because he has experienced injury sufficient to satisfy the requirements of Article III standing. Brief for Respondent, James R. Adams at 12. Adams argues that the major party provision injures him by categorically preventing him from ever serving as a judge and the bare majority provision injures him by limiting his potential judgeships whenever a bare majority exists in a court. Id. at 13. Consequently, Adams asserts, the constitutional provisions cause him to experience a chilling effect on his political association; an injury that he believes gives rise to standing. Id. at 15. Responding to Governor Carney, moreover, Adams contends that judgeships available to him in 2014 do not undermine his alleged injury because past opportunities are irrelevant to the obstacles that he currently faces. Id. at 17–18. Adams further maintains that his current interest in judgeships renders his injury imminent, rather than hypothetical. See id. at 16. Although he has not yet applied for a judgeship, Adams explains, Article III standing doctrine does not require him to make a futile attempt. Id. Moreover, Adams meets the “reasonable possibility” test, he argues, because Delaware law requires only that judgeship candidates be legally trained, Delaware citizens. Id. at 15. For standing, Adams continues, he does not need to assert that he realistically could have achieved a judgeship absent the constitutional provisions, but rather showing that the government has rendered it more difficult to obtain a benefit for members of one group than for members of another is sufficient. Id. at 14. Finally, Adams maintains that far from being self-serving, his party change reflects sincere disagreements with the Democratic party, strong enough to expose himself to Delaware’s allegedly unconstitutional restrictions on his employment opportunities. Id. at 19–20.

THE MAJOR PARTY PROVISION’S CONSTITUTIONALITY UNDER THE FIRST AMENDMENT

Governor Carney maintains that the major party provision is constitutional because it is consistent with precedent in Elrod v. Burns and Branti v. Finkel, which staked out an exception to the First Amendment’s prohibition on political affiliation considerations when the position at issue is one of policymaking. Brief for Petitioner at 28. State judges, he argues, fall under this exception because they exercise discretion in performing public functions and are not akin to the low-level government positions for which political affiliation is irrelevant and the First Amendment protects. Id. at 28–29. In support of this assertion, Governor Carney explains that judges make common law, administer the judicial system, regulate lawyers, and perform other functions that constitute policymaking. Id. at 31–33. The Third Circuit’s determination that judges are not policymakers, he continues, subverts Elrod’s rationale of political neutrality in staffing government positions because the provision that the Third Circuit struck down is designed to insulate the judiciary from partisan influence. Id. at 30.

Moreover, Governor Carney asserts that Supreme Court precedent requires a less demanding standard of review for state laws determining state government than the strict scrutiny review that the Third Circuit applied. Id. at 34–35. He maintains that in requiring him to show that Delaware could not achieve judicial political neutrality through less restrictive means than the major party provision, the Third Circuit contravened this precedent. Id. at 36–37. Instead, Governor Carney contends, federal courts should be more deferential to states in this context, and the proper question the Supreme Court should consider is whether political affiliation is “appropriate” to consider in filling state judgeships. Id. at 37. Furthermore, even if heightened-scrutiny review applies, Governor Carney argues, the major party provision satisfies that standard. Id. Under strict scrutiny, he notes, a challenged state legal provision must be narrowly tailored to a compelling state interest. Id. Governor Carney contends that the major party provision furthers Delaware’s compelling interest in maintaining the state judiciary’s political neutrality and the public’s confidence in the judiciary. Id. at 38. As evidence that the provision is narrowly tailored, Governor Carney points to research showing that mixed-ideology panels produce more balanced results than same-ideology panels. Id. at 40–41. Furthermore, he argues, the major party provision is the only viable means of maintaining Delaware’s balanced judiciary because without this provision, the bare majority provision alone would allow partisan governors to appoint non-partisan, but partisan-leaning judges to augment the bare majority of the governor’s party in the judiciary, thus defeating the judiciary’s aim of representing multiple ideologies. Id. at 42. Adams himself illustrates this danger, Governor Carney posits, because for Adams, Delaware Democrats were too “moderate,” and Adams’ appointment on a court, therefore, would ideologically skew the court to the left despite him not identifying as a Democrat. Id.

Adams replies that the major party provision is unconstitutional because the First Amendment prohibits selecting judges based on political affiliation, since such a scheme restricts freedom of association in a way that does not bear a rational relationship to a judge’s performance. Brief for Respondent at 22. He further maintains that Elrod’s and Branti’s First Amendment protections do not apply only to low-level government employees but extend to anyone—including judges—who are politically independent from the party in power. Id. at 23–25. Under these cases, Adams argues, judges do not fall within the policymaker exception to First Amendment protections, which applies only to government positions whose functions can only be performed effectively if the appointee shares the appointing power’s political ideology. Id. at 28. To the contrary, Adams contends, judges are supposed to be politically independent—they neutrally apply laws to facts regardless of their political affiliation—and politicized appointments could, in fact, sow corruption, not neutrality, in the judiciary. Id. at 26, 28–30.

Furthermore, Adams argues, the Court should apply strict scrutiny in its review of the state constitutional provisions because the standard of review in First Amendment cases is relaxed only when a restriction on associative rights is not severe, but here, the restriction on association rights is severe. Id. at 36. Additionally, Adams explains that federalism concerns, like the ones Governor Carney expresses, cannot override the standard of review applicable when the First Amendment is at play. Id. The major party and bare majority provisions fail strict scrutiny, Adams asserts, because they are not narrowly tailored to Delaware’s interest in a balanced judiciary. Id. at 37. Other states’ judiciaries fare well without such provisions, Adams contends, and thus, no evidence shows that Delaware’s provisions are necessary to enhance its judiciary’s integrity. Id. at 38–39. Adams, moreover, contests the argument that the challenged provisions even create judicial balance in the Delaware courts. Id. at 40. The Delaware Supreme Court, he explains, sits either with all five justices together or in panels of three, which allows for 3-2, 2-1, and 3-0 majorities in any given case. Id. Thus, Adams argues, the majority party can usually have its way regardless of the minority party’s representation on the court as a whole. Id. Adams further maintains that governors can manipulate the system as it stands by appointing, for example, centrist or right-leaning Democrats to fulfill the provision’s partisan standards, and nothing prevents a prospective appointee from switching parties to become eligible for a judgeship. Id. at 41. Finally, Adams argues that Governor Carney fails to show a lack of less restrictive alternatives to promoting Delaware’s interest in judicial neutrality because Codes of Judicial Conduct, existing term limits, and Delaware’s economic interest in maintaining a strong judiciary already promote this interest. Id. at 43–45. For instance, Delaware could, Adams suggests, promote a more centrist bench by requiring a supermajority to confirm judges, or ask about judicial ideology directly on judge applications. Id. at 45–46.

SEVERING THE MAJOR PARTY PROVISION FROM THE BARE MAJORITY PROVISION

Governor Carney contends that the Third Circuit erred when it determined that the bare majority provision is not severable from the major party provision. Brief for Petitioner at 47. First, Governor Carney explains that Adams’ challenge to the major party provision does not endanger the bare majority provision because Adams lacks standing to challenge the bare majority provision, and the Court has never addressed whether an implied exception to standing for severability exists. Id. at 47–48. Although Governor Carney concedes some ambiguity in the severability case law, he contends that in cases involving severability in which the Court did not first perform a standing inquiry, the parties challenging the laws had standing as to the non-severable portions of the laws. Id. at 49, n. 6. Thus, Governor Carney concludes, here the Court should not even reach the severability question because Adams lacks standing as to the bare majority provision, and thus, the Court should leave the bare majority provision undisturbed. Id. at 49. Even if the Court reaches severability, however, Governor Carney argues that the bare majority provision is severable from the major party provision and, therefore, survives the constitutional challenge even if the Court strikes down the major party provision. Id. at 50, 53. The bare majority provision is severable, he posits, because it stood alone for fifty-four years before the state enacted the major party provision and because no evidence indicates that Delaware Constitution’s framers intended an all-or-nothing approach to these provisions. Id. at 51–52.

Adams responds that Governor Carney waived any argument on severability by not addressing the issue in lower courts, and even if he did not waive the argument, the bare majority provision is not severable from the major party provision. Brief for Respondent at 50–51. The two are not severable, Adams continues, because the judiciary’s political makeup and the balance of that makeup are intertwined concepts and have been since the first of the provisions was passed. Id. at 51. Adams further contends that because the bare majority provision does not achieve its aim of balancing the judiciary without the major party provision, the bare majority provision cannot survive if the major party provision is struck down. See id. at 52. Moreover, Adams argues, the legislature likely considered both provisions as interconnected because the legislature incorporated the major party provision into the text of the bare majority provision as an amendment to the Delaware Constitution, rather than placing the major party provision in a separate paragraph. Id. Finally, in response to the standing point, Adams maintains that he has standing to assert his claims and that standing has no bearing on severability, as the Court only considers severability after resolving standing issues. Id. at 52–53.