(Reuters) - The U.S. Supreme Court was not particularly interested during oral arguments Monday morning in Delaware’s own glowing assessment of its state judiciary. Michael McConnell of Wilson Sonsini Goodrich & Rosati, who argued on behalf of Delaware Governor John Carney, told the justices that Delaware’s “jewel” of a judiciary is the result of the state’s unique, bipartisan judicial appointment process. David Finger of Finger & Slanina, who represents a Delaware lawyer challenging the system, argued there’s no evidence that the appointment process is responsible for the state judiciary’s excellent reputation. But aside from praise from Justice Brett Kavanaugh for Delaware jurists William Allen, Leo Strine, Norman Veasey and Collins Seitz, the U.S. justices avoided discussion of the quality of Delaware’s judges.
Nor was the U.S. court’s primary concern even the constitutionality of Delaware’s system. The state’s constitution has two provisions to assure that its judiciary maintains a bipartisan balance. The “bare majority” provision requires that no political party hold more than a one-judge majority on any state court. The more recently-added “major party” provision requires that judges on the state’s Superior, Chancery and Supreme Courts be Democrats or Republicans. In the decision under review at the U.S. Supreme Court, the 3rd U.S. Circuit Court of Appeals agreed (933 F.3d 166) with Delaware lawyer James Adams, who is not registered as a Democrat or Republican, that the major party clause violated his First Amendment rights because it precluded him from serving as a judge on three of the state’s five courts. The case, in other words, requires the U.S. Supreme Court to decide where Delaware’s sovereign rights under the 10th Amendment must give way to Adams’ constitutional right of free association.
But to get to that question, the justices have to be sure that Adams met constitutional standing requirements to bring his suit against Delaware governor John Carney – and at Monday’s argument, several members of the court seemed more concerned about how this case will shape precedent on Article III standing than on the other constitutional questions presented.
Adams never formally applied for a Delaware judgeship. As I’ve written, Adams was a registered Democrat until 2017. He didn’t apply to fill judicial openings before then, he has said, because the openings he might have wanted to fill were reserved for Republicans under the state constitution’s bare majority clause. (Lawyers for Governor Carney have disputed that assertion.) Adams ended his affiliation as a Democrat in 2017 and has said he did not subsequently apply for a judgeship because he wasn’t eligible under the major party clause. The appeals court concluded that Adams did not have standing to challenge the bare majority clause but met Article III standing requirements to sue over the major party clause, which the 3rd Circuit then determined to be non-severable from the bare majority provision.
Carney counsel McConnell told the justices on Monday that because Adams had passed up the chance to apply to be a judge – for any state court when he was a Democrat and for two of the state’s five courts after he became an independent – he could not show he was injured by Delaware’s constitutional mandates.
The Supreme Court’s seminal ruling on standing, 1992’s Lujan v. Defenders of Wildlife (112 S.Ct. 2130), McConnell said, requires that plaintiffs have a “concrete plan.” Adams had no such plan, he said. “If Mr. Adams is held to have standing here, then I think anyone would have standing to challenge provisions of constitutions that they have academic disagreements with simply by saying that they might want to take advantage of them at some point,” McConnell said.
But Chief Justice John Roberts and Justices Elena Kagan and Kavanaugh pushed back on McConnell’s assertion. Adams had testified at his deposition that he “would consider and apply for a future vacancy.” Supreme Court precedent on standing, the justices reminded McConnell, requires only, in the chief justice’s words, “that a plaintiff injured by being excluded from competing for a position … establish that he’s ready and able to apply for it.” Adams said he wanted to apply but knew he had no shot once he was not affiliated with either major party, Justice Kagan said. Why should the Supreme Court, she said, require him to fill out an application that would be futile?
Justice Kavanaugh picked up that point. “You keep saying he hasn’t applied,” he told McConnell. “Of course, he hasn’t applied. He’s not eligible. And that’s the point.”
During Finger’s oral argument, though, Chief Justice Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito probed just what was required to establish Adams’ concrete plans. Would it be enough, Justice Thomas said, for Adams to have said “to a couple of friends at a cocktail party” that he would have applied to be a judge but couldn’t because he wasn’t a Democrat or Republican? Justice Breyer said his clerk counted 16 openings that Adams could have applied for, but didn’t, before he dropped his party affiliation. And even after he was no longer a Democrat, Justice Breyer said, Adams didn’t file an application for openings on the two state courts that did not require judges to be Democrats or Republicans.
Adams’ strongest statement of intent, said Chief Justice Roberts, was his testimony that he “would consider and apply for” a judicial appointment. “If I got an application for a clerkship from someone who said she would ‘consider and apply for the job,’ I really wouldn’t know what to make of that,” he said.
Both Justices Breyer and Alito focused on the record in the case, in which the 3rd Circuit affirmed the trial court’s grant of summary judgment to Adams without an evidentiary hearing on whether the Delaware lawyer sincerely intended to apply to be a judge. If the justices determined that record to be insufficient to support summary judgment, Justice Alito asked Finger, “Is there any reason for us to go on to the merits of the case? Wouldn’t that be deciding a hypothetical case at that point?” (Finger said the Supreme Court would have to find reason to doubt Adams’ sincerity to determine the summary judgment record to be insufficient.)
The only one of the eight justices at Monday’s argument to ask no question about standing was Justice Sonia Sotomayor. (Justice Neil Gorsuch asked Adams counsel Finger if he was contesting the 3rd Circuit ruling that he did not have standing for his bare majority challenge.)
I couldn’t discern, based on the justices’ questions, how the court will ultimately rule on Adams’ standing. Justices Kagan and Kavanaugh seemed inclined to find Adams had a right to sue. Justice Alito appeared to have serious questions about the underlying record. Chief Justice Roberts and Justices Breyer and Thomas did not tip their positions.
I wouldn’t be surprised to see an unusual alignment on standing when the case is decided.
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