Student Insights | March 13, 2021
Carney v. Adams, 141 S. Ct. 493 (2020) (Breyer, J.).
Student Insight by Ben Sheppard
Geo. Wash. L. Rev. On the Docket (Oct. Term 2020)
Slip Opinion | SCOTUSblog
Carney v. Adams: Standing on Unaffiliated Voters’ Rights
In Carney v. Adams,1 the Supreme Court held that James Adams, a Delaware lawyer, lacked standing to challenge Delaware’s constitutional provisions that require Delaware’s three highest courts to maintain political balance between the “major” political parties on their benches.2 On closer review, the holding was based on an incorrect understanding of the constitutional requisites for Article III standing. The Court’s decision here tramples over the rights of unaffiliated and third-party voters.
Background
Some historical background is necessary to understand Adams. In 1897, Delaware drafted a new constitution.3 At the time, public confidence in Delaware’s state government was low because of “[p]oll-tax abuse and vote-buying” schemes.4 Delaware judges were considered partisan because Delaware governors appointed judges based on their political loyalty and not based on their legal qualifications.5 The state’s judges were appointed to lifetime terms by a governor with absolute appointment power.6
The 1897 Delaware constitutional convention drafters sought to improve their state’s government. To assist the judiciary, the drafters enacted the bare-majority provision that forbids more than three of the five justices be members of the same political party.7 Originally, the bare-majority provision only applied to five of the state’s judges—the Chief Justice and four Associate Judges.8
The bare-majority provision remained undisturbed from 1897 to 1951.9 In 1951, Democrats in the state legislature desired the creation of a Delaware supreme court.10 The proposed change was opposed by state Republicans.11 To appease Republicans opposed to the new court, artful legislators extended the bare-majority provision to the Supreme court and drafted a major-party provision, which mandates that judges on the state’s three highest courts—the Supreme Court, Court of Chancery, and Superior Court—be members of one major political party.12 This exclusion requires state judges be either members of the Republican or Democratic parties.13 The major-party provision has been preserved by both major parties because it “ensures some level of institutional support.”14 Delawarean lawyers know that membership in either the Republican or Democratic party is necessary for a judicial appointment on the state’s highest courts.15
The bare-majority provision and major-party provision remained unchallenged until 2017 when James Adams, a Delaware lawyer and unaffiliated voter, initiated this suit.16 Adams previously worked at the Delaware Department of Justice and considered applying for judgeships, but he did not pursue those opportunities rigorously because he admired his boss, then–Delaware Attorney General Beau Biden.17 But after Biden became ill and died in 2015,18 Adams’s professional direction changed, and he took a one-year sabbatical from the practice of law.19 After this sabbatical, Adams “thought long and hard” about his future, and decided he would become a Delaware judge.20
Adams’s first opportunity came in 2017 when the Delaware Judicial Nominating Committee disseminated a list of judicial vacancies on the state Supreme Court and state Superior Court.21 However, these judicial positions were reserved for Republicans because of the bare-majority provision, and Adams was “categorically excluded” because he was a registered Democrat.22
That same year, Adams left the Democratic Party because he felt that Democrats were too moderate and not politically progressive.23 Adams felt he aligned with no one in Delaware politically, so he registered as “unaffiliated.”24 As an unaffiliated voter, Delaware’s constitutional major-party provision and bare-majority provision barred Adams from serving on any of the state’s three highest courts.
Adams filed suit in the U.S. District Court for the District of Delaware against the Governor of Delaware, John Carney. Adams challenged the provisions as violations of his First Amendment right to political association. The District Court entered summary judgment in favor of Adams.25 After holding that Mr. Adams had standing to challenge both the major-party requirement and the bare-majority provision, it granted summary judgment on the merits.26
Carney then appealed to the U.S. Court of Appeals for the Third Circuit. The appellate court affirmed in part and reversed in part.27 Like the district court, the court of appeals held that Adams had Article III standing to challenge both the major-party and bare-majority provisions and that prudential standing requirements did not bar consideration of the bare-majority provision, contrary to the Governor’s arguments.28 The Third Circuit held that the major-party provision violated the First Amendment of the U.S. Constitution.29 In addition, the court held that the bare-majority provision is not severable from the major party requirement.30
A petition for a writ of certiorari to the Supreme Court was granted. Writing for a unanimous Court, Justice Breyer held that Adams did not establish Article III standing because he did not demonstrate that he was able and ready to apply for a state judicial vacancy in the near future.31 There were fourteen Democrat-eligible vacancies prior to 2017 for which Adams had been eligible but did not apply.32 Further, Adams changed his party affiliation to “unaffiliated” shortly before filing suit despite previously being a lifelong Democrat, and even though doing so would make him ineligible for a judgeship.33 Therefore, according to the Court, Adams did not suffer a concrete, personal, or imminent injury necessary for Article III standing.34
A Flawed Standing Analysis
The Court’s holding regarding Adams’ Article III standing is flawed. The case primarily concerns injury in fact, the “[f]irst and foremost” of standing’s three elements.35 Much of the Court’s opinion disputes whether Adams was “able and ready” to apply for a judicial position.36 The Court took issue with the fact that Adams did not apply for open judicial positions between 2012 and 2016.37 This history is irrelevant to standing. What matters is his injury in 2017 when Adams was unable to be considered for a judgeship. Precedent does not require individuals to apply for an opportunity where such an application would be futile to establish standing.38 Instead, they must demonstrate that they are “very likely” to apply and would take an action but for an unlawful government policy.39 Adams stated that he “would consider and apply for” any judicial position he felt qualified for, but the Delaware judicial provisions prevented him from being considered multiple times.40 First, judicial positions were reserved only for Republicans because of the bare-majority provision while Adams was a Democrat.41 Second, as an “unaffiliated” voter, Adams was ineligible for any position on the state’s three highest courts because of the major-party provision.42
Precedent shows that Adams established standing. According to the Court, a person has a “constitutional right to be considered for public service without the burden of invidiously discriminatory qualifications.”43 In fact, the “loss of a job opportunity for failure to compromise one’s convictions” is an injury-in-fact.44 The major-party provision and bare-majority provision injure Adams in two ways. First, he is ineligible for consideration for a position on the state’s three highest courts based on his political convictions because he is an “unaffiliated voter.” Second, the bare-majority provision excluded Adams from consideration when was registered as a Democrat. Adams must either give up his quest for a judgeship or violate his political beliefs and register as a member of the Democratic or Republican Party to be eligible. This establishes standing.
Ultimately, the Court’s decision on standing grounds precluded it from considering serious First Amendment issues. Tragically, the major-party provision still stands on the rights of nearly twenty-five percent of Delaware citizens who are “unaffiliated” or third-party voters45—all of whom are considered so heterodox they are excluded by law from serving on Delaware’s three highest courts.
Ben Sheppard is a 3L student at The George Washington University Law School.
1. 141 S. Ct. 493 (2020)
2. Id. at 497, 503.
3. See Garett Epps, Delaware’s Weird—and Constitutionally Suspect—Approach to Judicial Independence, Atlantic (Mar. 28, 2020), https://www.theatlantic.com/ideas/archive/2020/03/delawares-weirdand-constitutionally-suspectapproach-to-judicial-independence/608971/.
4. Brief of the Brennan Center for Justice at NYU School of Law as Amicus Curiae Supporting Petitioner at 6–7, Carney v. Adams, No. 19-309 (U.S. filed Jan. 28, 2020).
5. See id. at 7.
6. See id.
7. See Del. Const. art. IV, § 3.
8. See Joel Edan Friedlander, Is Delaware’s “Other Major Political Party” Really Entitled to Half of Delaware’s Judiciary?, 58 Ariz. L. Rev. 1139, 1149 (2016).
9. See Epps, supra note 3.
10. Friedlander, supra note 8, at 1150.
11. See id.
12. See id.; Del. Const. art. IV, § 3.
13. See Epps, supra note 3.
14. Friedlander, supra note 8, at 1160.
15. See id.
16. See Epps, supra note 3.
17. See Brief for Respondent at 5, Carney v. Adams, No. 19-309 (U.S. filed Feb. 20, 2020).
18. See id.
19. See id. at 5–6.
20. Id. at 6.
21. See id.
22. Id.
23. See id.
24. See id.
25. Adams v. Carney, No. 17-181-MPT, 2017 U.S. Dist. LEXIS 200304 (D. Del. Dec. 6, 2017).
26. See id.
27. See Adams v. Governor of Del., 922 F. 3d 166, 183–84 (2019).
28. See id. at 173–76.
29. See id.
30. See id. at 183–84.
31. See Adams, 141 S. Ct. at 499–500.
32. See id. at 500.
33. See id. at 500–501.
34. See id. at 503.
35. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).
36. Adams, 141 S.Ct. at 499–500.
37. See id. at 500.
38. See Gratz v. Bollinger, 539 U.S. 244, 262 (2003).
39. Adarand Constructors v. Pena, 515 U.S. 200, 212 (1995); see Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 184 (2000).
40. Brief for Respondent at 16.
41. See id. at 6, 13.
42. See id. at 13–14.
43. Turner v. Fouche, 396 U.S. 346, 362 (1970).
44. Rutan v. Republican Party of Illinois, 497 U.S. 62, 77 (1990) (citing Torasco v. Watkins, 367 U.S. 488, 496 (1961)); Keyishian v. Bd. of Regents, 385 U.S. 589, 609–10 (1967).
45. See State of Delaware Department of Elections: Voter Registration Totals, Office of the State Election Comm’r (Nov. 1, 2020), https://elections.delaware.gov/reports/e70r2601pty_20201101.shtml.
Recommended Citation
Ben Sheppard, Carney v. Adams: Standing on Unaffiliated Voters’ Rights, Geo. Wash. L. Rev. On the Docket (March 13, 2020), https://www.gwlr.org/carney-v-adams-standing-on-unaffiliated-voters-rights/.
