U.S. Supreme Court building in Washington, D.C. – Photo: Diego M. Radzinschi/ALM

The U.S. Supreme Court announced Monday it will consider in October whether Delaware's political balance requirements for judges in the state's top courts are constitutional.

Gov. John Carney's appeal of the U.S. Court of Appeals for the Third Circuit's finding that Delaware could no longer mandate the number of Republicans and Democrats permitted to serve in its courts at a given time is listed as the first case the Supreme Court will consider during its October-through-September calendar.

The case, originally brought against Carney in 2017 by former attorney James Adams in the U.S. District Court for the District of Delaware, has centered on two prongs of provisions in the Delaware constitution that are not mirrored by any other state and both of which involve how the two major political parties should be represented in the judiciary.

One, in place since 1897, specifies that judges of one political party can have no more than a "bare majority" in each of Delaware's courts. The other, added in 1951, specifies that the remaining judges must be of the other major political party, making applicants registered as anything other than a Democrat or a Republican, as well as those unaffiliated with any political party, ineligible to serve as a judge in the state.

According to Carney's petition for writ of certiorari, Adams was a registered Democrat through 2016. The following year, he registered as an independent, and eight days later he filed his suit against Carney. Adams had not applied for a position as a judge at the time, though Carney's writ of certiorari states he had been turned down for a Family Court judgeship in 2009 for reasons unrelated to his political affiliation.

"No other state has a requirement like Delaware has," said David Finger of Finger & Slanina on Tuesday. "The effect on Delaware, if we are successful, is that there will be an even larger pool of qualified candidates, which can only improve the legal system here."

The Third Circuit entered a judgment in April of 2019, ruling Delaware's required political balance of judges violated the First Amendment and denied a petition to rehear the case the following month. Part of that judgment addressed whether judges qualify as policy makers, and the Third Circuit's stance that judges are not exempt from the First Amendment ban on political party being taken into account in government hiring is in contrast with that of other appellate courts in the country.

Carney filed his writ of certiorari in September, arguing the appellate court's decision violated the state's sovereign power to determine qualifications for government officials and that the two issues at hand, one having existed for more than 50 years without the other and still in place independently in two courts, should be considered separately.

In the petition, Carney argued the party balancing laws are part of what has historically made Delaware courts' decisions less political than courts in other states, with decisions often made unanimously.

"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. If a job 'cannot properly be conditioned upon allegiance to the political party in control,' the policymaking exception is inappropriate," the petition stated. "Judges simply do not fit this description. The American Bar Association's Model Code of Judicial Conduct instructs judges to promote 'independence' and 'impartiality,' not loyalty. It also asks judges to refrain from political or campaign activity."

In a brief filed in February, Finger echoed the decision made by the Third Circuit, stating categorically excluding people from judgeships based on political affiliation violated the First Amendment and gave Adams Article III standing. Those First Amendment rights, he wrote, preempt states' right to determine how to appoint government officials.

"Adams does not dispute that political affiliation may ultimately be taken into account by a Governor," Finger wrote in a brief. "But making it a mandatory job requirement puts Adams and those similarly situated in the position of having to choose between giving up the opportunity for a judgeship and violating their political conscience. That choice is offensive to the First Amendment right of freedom of association and should not be allowed to stand."

The Supreme Court granted certiorari in December and originally set the case on its March docket, but argument was delayed to October in light of COVID-19 concerns.

Finger said Tuesday he's looking forward to arguing Adams' case before the Supreme Court but that the court has not yet announced whether that argument will take place telephonically, on a video call or in person. Michael McConnell of Wilson Sonsini Goodrich & Rosati, who is representing Adams, did not respond for comment on the case Tuesday.