Friday, December 6, 2019

SCOTUS Grants Certiorari in First Amendment Challenge to Delaware Constitution's Judicial Appointment Provision

The United States Supreme Court granted certiorari in Adams v. Carney, Governor of Delaware in which the Third Circuit held several sections of the Delaware Constitution regarding the selection of judges violated the First Amendment.

Centrally, the Delaware Constitution, Art IV ยง3 seeks to achieve a partisan balance in the judiciary and provides that appointments to the state judiciary "shall at all times be subject to the following limitations":

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.

Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.

Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.

In its opinion, the Third Circuit panel found that this political balancing violated the First Amendment, concluding that it was not within the protections for political policymakers of Elrod v. Burns (1976) and Branti v. Finkel (1980).  The Third Circuit found that even assuming that "judicial political balance is a vital Delaware interest," Delaware failed to demonstrate that this goal could not be realized using less restrictive means of infringing on the plaintiff's associational interests. 

And while the Third Circuit found that the plaintiff, a retired Delaware attorney who belonged to neither major party. lacked standing to challenge the Delaware constitutional provisions regarding Family Court and the Court of Common Pleas.  The United States Supreme Court, however, has directed briefing on the issue of Article III standing, presumably pertinent to the other provisions.

1024px-El_Rodeo_(1914)_(41507)[image via]

 

https://lawprofessors.typepad.com/conlaw/2019/12/scotus-grants-certiorari-in-first-amendment-challenge-to-delaware-constitutions-judicial-appointment.html

Association, Courts and Judging, First Amendment, Supreme Court (US) | Permalink

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