“First, three of the five justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said justices shall be of the other major political party.” So reads a part of Article IV, Section 3 of the Delaware Constitution.
The provision requires that all five Justices of the Delaware Supreme Court be either Democrat or Republican — and specially there must always be three of one major political party and two of the other major political party.
A case pending before the U.S. Supreme Court, Carney v. Adams, presents the question to the Supreme Court of whether this state constitutional provision violates the First Amendment. The argument is that this state constitutional provision violations the political association rights of political independents and members of third parties.
James Adams, an independent, contends that the provision violates the First Amendment. Adams, who has applied for judicial positions before, contends that he has refrained in recent years because of his independent status and Article IV, Section 3 of the Delaware Constitution.
The U.S. Court of Appeals for the Third Circuit ruled that the provision violated the First Amendment because it restricted individuals on the basis of political affiliation. The Third Circuit cited a trio of U.S. Supreme Court decisions — Elrod v. Burns (1976), Branti v. Finkel (1980) and Rutan v. Republican Party of Illinois (1990) — which stand for the principal that government officials violate First Amendment freedoms if they discharge or otherwise discriminate against public employees based on political affiliation, unless the impacted position is a key policymaking position.
“The purpose of the policymaking exception is to ensure that elected officials may put in place loyal employees who will not undercut or obstruct the new administration,” the Third Circuit wrote. This does not apply to judges who are supposed to be impartial arbiters.
The Third Circuit recognized that its decision conflicted with decisions from the Sixth and Seventh circuits. This created a classic circuit split and led to U.S. Supreme Court review.
In its amicus brief, the Cato Institute takes the side of Adams. “Delaware severely burdens the expressive association rights of independents and members of third parties by categorically barring them from serving on the state’s three highest courts,” the institute writes.
The Libertarian Party agrees, writing in its amicus brief, “just as Delaware may not bar Republicans or Democrats from serving on its state courts based on their political affiliation, it may not impose such a prohibition against Libertarians, or any other citizens, based on their political affiliation.”
However, others disagree. For example, the Delaware Bar Association, in its amicus brief, asserts that a state’s interest in a non-partisan judiciary is a compelling interest that trumps an individual lawyer’s voter registration affiliation.
The U.S. Supreme Court has suspended oral arguments because of the COVID-19 pandemic.
But, when the court resumes normal procedures, it has a most interesting case on its hands.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).